Delhi High Court
Rajiv Agarwal vs Union Of India & Anr. on 23 November, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: November 06, 2020
Pronounced on: November 23, 2020
+ W.P.(C) 7978/2020
RAJIV AGARWAL .... Petitioner
Through: Mr. Vijay Aggarwal, Mr.
Mudit Jain, Mr. Ashul
Aggarwal,
Mr. Shailesh Pandey, Ms.
Barkha Rastogi, Mr.
Deepanshu Choithani, Mr.
Shekhar Pathak, Mr. Yugant
Sharma, Mr. Hardik Sharma,
Advocates
Versus
UNION OF INDIA & ANR. .... Respondents
Through: Mr. Kirtiman Singh, Central
Government Standing
Counsel with Mr. Waize Ali
Noor & Mr. Rohan Anand,
Advocates for respondent
No.1/UOI
Mr.Sanjay Jain, ASG, with
Ms. Sonia Mathur, Senior
Advocate, Mr.Ripudaman
Bhardwaj, Special Public
Prosecutor with Mr.Rishi Raj
Sharma and Mr.Padmesh
Mishra, Advocates for
respondent No.2 with Mr.C.B.
Ojha, DSP
(HIQ)
+ W.P.(C) 8021/2020 & CM No.26125/2020
Signature Not Verified W.P.(C) 7978/2020 & W.P.(C) 8021/2020 & W.P.(C) 8617/2020 Page 1 of 60
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& W.P.(C) 8620/2020
By:PRADEEP SHARMA
Signing Date:23.11.2020
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SIDDHARTH BEHURA .... Petitioner
Through: Mr. Atmaram N S Nadkarni,
Senior Advocate with Mr.
Vedanta Varma, Mr. Sanat
Tokas, Ms. Ankita Tiwari &
Mr. Ayush Kaushik,
Advocates
Versus
UNION OF INDIA & ANR. .... Respondents
Through: Mr. Kirtiman Singh, Central
Government Standing
Counsel with Mr. Waize Ali
Noor & Mr. Rohan Anand,
Advocates for respondent
No.1/UOI
Mr.Sanjay Jain, ASG, with
Ms. Sonia Mathur, Senior
Advocate, Mr.Ripudaman
Bhardwaj, Special Public
Prosecutor with Mr.Rishi Raj
Sharma and Mr.Padmesh
Mishra, Advocates for
respondent No.2 with Mr.C.B.
Ojha, DSP (HIQ)
+ W.P.(C) 8617/2020 & CM No. 27790/2020
R K CHANDOLIA .... Petitioner
Through: Mr. Mudit Jain, Mr. Ashul
Aggarwal, Mr. Shailesh
Pandey, Ms. Barkha Rastogi,
Mr. Deepanshu Choithani,
Mr. Shekhar Pathak, Mr.
Yugant Sharma, Mr. Hardik
Sharma, Advocates.
Signature Not Verified W.P.(C) 7978/2020 & W.P.(C) 8021/2020 & W.P.(C) 8617/2020 Page 2 of 60
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Versus
UNION OF INDIA & ANR. .... Respondents
Through: Mr.Ripudaman Bhardwaj,
Central Government Standing
Cousnel for respondent No.1.
Mr.Sanjay Jain, ASG, with
Ms. Sonia Mathur, Senior
Advocate, Mr.Ripudaman
Bhardwaj, Special Public
Prosecutor with Mr.Rishi Raj
Sharma and Mr.Padmesh
Mishra, Advocates for
respondents with Mr.C.B.
Ojha, DSP (HIQ)
+ W.P.(C) 8620/2020
SHARAD KUMAR .... Petitioner
Through: Mr. Ramesh Gupta, Senior
Advocate along with Mr.
Balaji Subramanian & Ms.
Ishani Banerjee, Advocates.
Versus
UNION OF INDIA & ANR. .... Respondents
Through: Mr.Ripudaman Bhardwaj,
Central Government Standing
Cousnel for respondent No.1.
Mr.Sanjay Jain, ASG, with
Ms. Sonia Mathur, Senior
Advocate, Mr.Ripudaman
Bhardwaj, Special Public
Prosecutor with Mr.Rishi Raj
Sharma and Mr.Padmesh
Mishra, Advocates for
respondents with Mr.C.B.
Ojha, DSP (HIQ)
Signature Not Verified W.P.(C) 7978/2020 & W.P.(C) 8021/2020 & W.P.(C) 8617/2020 Page 3 of 60
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Signing Date:23.11.2020
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CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
%
1. The relief sought in these petitions mainly relates to
Crl.L.P.185/2018, titled as Central Bureau of Investigation Vs.
A.Raja & Ors., which is pending consideration before this Court.
The Crl.L.P. 185/2018 arise out of FIR bearing No. RC DAI 2009 A
0045, registered on 21st October, 2009 by the Central Bureau of
Investigation, wherein the applicants/ petitioners were charged for
the offences under Section 13(2) read with Section13(1)(d) of the
Prevention of Corruption Act, 1988 ("PC Act") and Indian Penal
Code, 1860 IPC. Vide impugned judgment dated 21st December,
2017, the present applicants were acquitted of the charge to commit
conspiracy for the offences under Sections 409/ 420/ 467 IPC and
under Sections 13(2) r/w 13(l)(d) of the Prevention of Corruption
Act, 1988. Against the impugned judgment of 21 st December, 2017,
the Crl.L.P.185/2018 has been preferred by the CBI seeking 'leave to
appeal'.
2. The above captioned first petition W.P.(C) 7978/2020 has
been filed by petitioner- Rajiv Agarwal (respondent No.14 in
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Crl.L.P.185/2018); the second captioned petition W.P.(C)
8021/20200 has been filed by petitioner-Siddharth Behura
(respondent No.2 in Crl.L.P.185/2018); the third captioned petition
W.P.(C) 8617/2010 has been filed by petitioner-R.K.Chandolia
(respondent No. 3 in Crl.L.P.185/2018) and the fourth captioned
petition W.P.(C) 8620/2020 has been filed by petitioner-Sharad
Kumar (respondent No.16 in Crl.L.P.185/2018).
3. The fulcrum of these petitions rests upon applications
Crl.M.A. 13703/2020 (filed by respondent No.13); Crl.M.A.
13851/2020 (filed by respondent No.2) & Crl.M.A. 14091/2020
(filed by respondent No.13) in Crl.L.P.185/2018 vide which these
applicants had sought a direction to CBI to place on record 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. as well as
approval/ notification under Section 24(8) Cr.P.C. in favour of
Mr.Sanjeev Bhandari, Special Public Prosecutor authorizing him to
file the criminal leave to appeal. During the course of arguments in
these applications, CBI had placed before this Court Communication
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dated 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 decision to
engage Mr. Tushar Mehta, learned ASG to represent in the 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.
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(Khushboo Goel Chowdhary)
Deputy Secretary to the Govt. of 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-AVD-II(B) 17 January, 2018
4. Vide these petitions, the applicants/petitioners are seeking
setting aside of Communication dated 17th January, 2018 issued by
the Department of Personnel and Training (DoPT) for not being in
conformity with the Delhi High Court Rules and CBI Manual. In
addition, prayer is also made to hold that Crl. L.P.185/2018 was filed
by an unauthorized person and is non est in the eyes of law. The
common prayer made in these petitions is as under:-
W.P.(C) 7978/2020 & W.P.(C) 8021/2020 &
W.P.(C) 8617/2020 & W.P.(C) 8620/2020
"PRAYER
In the circumstances mentioned
hereinabove, it is most respectfully prayed that
this Hon'ble Court may graciously be pleased to
issue appropriate writ, order or direction
especially in the nature of Certiorari or
Mandamus to:
A. Set aside the communication dated
17.01.2018 issued by Department of Personnel
& Training for not being in terms of mandate of
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law and for not being speaking and without any
directions and without any application of mind;
B. Set aside the communication dated
17.01.2018 issued by Department of Personnel
& Training for not being in conformity with
Delhi High Court Rules and CBI Manual as
concerned officers/authorities were not
consulted with and as the appeal drafted was
itself without their being any Special Public
Prosecutor, at the time letter dated 17.01.2018
was issued;
C. Hold that the appeal i.e Crl LP 185/2018
titled as 'CBI vs A. Raja & Ors.' was filed by a
person not authorized in law and is non est in
the eyes of law;
D. Pass any other order(s) and direction(s)
in view of the facts and circumstances of the
case, in the interest of justice."
5. These four writ petitions have been filed by the parties when
this Court was in the middle of hearing arguments in rebuttal in
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A.
14091/2020 in CRL.L.P. 185/2018, wherein almost similar relief has
been sought. Learned counsels representing the writ petitioners
agitated that these petitions be also heard and decision be rendered
along with applications Crl.M.A. 13703/2020 & Crl.M.A.
13851/2020 & Crl.M.A. 14091/2020. This Court has heard extensive
arguments addressed by not only learned counsels for applicants in
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A.
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14091/2020 in CRL.L.P. 185/2018 but also of other respondents,
who raised similar questions before this Court though no formal
application was filed on their behalf.
6. The pleas raised in all the four writ petitions are almost similar
and therefore, these petitions are being disposed of by this common
order.
7. The writ petitioners have pleaded in these petitions that CBI
has failed to produce the complete record and has not complied with
CBI Manual as well as Report of Public Prosecutor and Director of
Prosecution submitted to the Central Government seeking mandatory
approval to file the appeal against acquittal and has also failed to
place on record "any direction" in respect of either Mr. Tushar
Mehta, learned ASG or Mr. Sanjiv Bhandari, learned Special Public
Prosecutor to prefer the leave to appeal, as mandated by Section 378
(2) of Code of Criminal Procedure, 1973. It was submitted that in the
absence of the above record, proceedings in Crl. L.P. No.185/2020
are without any authority of law, non-est and cannot survive. It was
strenuously urged by all the learned counsels for the respondents
before this Court that during the course of arguments in Crl.M.A.
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13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A. 14091/2020 in
CRL.L.P. 185/2018, learned ASG had stated that the sanction of the
Central Government to file an appeal by the CBI is an administrative
order, which cannot be considered and decided in leave to appeal
and has to be considered in writ jurisdiction, and this submission of
learned ASG has necessitated filing of these writ petitions by the
petitioners. It was submitted by all the learned counsels for
petitioners that since the decision making process of filing the leave
to appeal is questioned in these petitions, this Court shall look into
the same being an administrative decision. In support of above
submissions, reliance was placed upon decisions in Jugal Kishore
vs. Lt. Governor, Delhi and Ors. 2017 (2) JCC 1335; Vishnu vs. Lt.
Governor, Delhi and Ors. 2016 (226) DLT 129; Vinod Kumar vs
State of Haryana 2013 (16) SCC 293; Tata Cellular Vs Union of
India AIR 1965 SC 11; Ranjit Thakur Vs. Union of India and Ors.
AIR 1987 SC 2386 and order dated 10th October, 2018 in W.P.(Crl.)
225/201, titled as Manohar Lal Sharma versus Narendra
Damodardas Modi &Ors.
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8. The ground taken in the writ petitions is that under Section
378(2) Cr.P.C., only Central Government has the power to direct the
Public Prosecutor to file an appeal against an order/judgment of
acquittal but CBI has not placed any document before this Court
issued by the Central Government vide which Mr.Sanjeev Bhandari
was appointed as Special Public Prosecutor for CBI for 2G cases at
Delhi High Court and was authorized or directed to file the criminal
leave to appeal, since he was not even appointed as Special Public
Prosecutor for CBI.
9. Another ground raised by the writ petitioners is with regard to
CBI sharing the impugned communication dated 17 th January, 2018
on screen and not filing it at the filing counter and it not being
accompanied by any affidavit. Reliance was placed upon Delhi High
Court Rules (Vol.III), Chapter-25 E "Appeal and Revision-
Criminal", to submit that the State Government is not supposed to
issue direction to file an appeal where the case is trifling in itself and
the acquittal involves no erroneous principles of law. It was further
submitted that no appeal is to be filed however serious or otherwise
important as the case may be, where the guilt of the accused is fairly
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questionable or the evidence is disbelieved and the Court has
considered and weighed it with impartiality, intelligence and care.
10. The writ petitioners also pleaded that an order under Section
378(2) Cr.P.C. is mandatory, which can be subjected to judicial
scrutiny. Reliance was placed upon Hon'ble Apex Court's decision
in Khetrabasi Samual & Ors vs. State Of Orissa 1969 2SCC 571
and Madan Mohan Singh vs. State Of Uttar Pradesh AIR 1954 SC
63 and decision of 31st May, 2002 of this Court in W.P.(C)
4235/1996, titled as Jayadeva Prasad vs. Union Of India (UOI) &
Anr. Manu/DE/0792/2002 (scc citation please) to submit that CBI
Manual mandates that due process has to be followed for obtaining
sanction under Section 378(2) Cr.P.C. to file an appeal and CBI is
liable to bring on record the material facts constituting the offence
placed before the Sanctioning Authority. Reliance was placed upon
Clauses 23.20, 23.21, 23.22 and other Clauses of the CBI Manual in
this regard. Reliance was also placed upon decision in Shashikant
Vs. CBI 2007 1 SCC 630 to submit that CBI Manual is a mandatory
document and ought to be followed. Reliance was placed upon
decision in State Vs N. Ganeswaran 2013 (3) SCC 594 to submit
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that non compliance with Cr.P.C. would not vitiate an act, if the
same is in compliance with the CBI manual. Reliance was also
placed upon decisions in State of Rajasthan & Ors. Vs. Union of
India 1978 SCR (1) 1 and Indian Railway Construction Co. Vs. Ajay
Kumar 2003 (4) SCC 579 in support of above submissions.
11. It was also urged that in the absence of necessary sanction
under Section 378(2) Cr.P.C., the present appeal be rendered non est.
In this regard, reliance was placed upon decision in State Vs.
Mustaq Ahmed (1988) 1 Crimes 322 (J & K).
12. Next ground urged in these writ petitions is that on the date of
filing of the appeal, no special Public Prosecutor was engaged for 2G
case. It was submitted that under Section 378(2) Cr.P.C., an appeal
can be filed by a Public Prosecutor on the directions of the Central
Government. It was stated that vide impugned communication of 6 th
March, 2014, Mr. Sanjeev Bhandari, learned Advocate had been
appointed as Special Public Prosecutor for CBI in all the cases and it
was a general appointment, whereas the present matter has been
treated as a "special class" and under the directions and observations
of the Hon'ble Apex Court, Special Public Prosecutors have been
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appointed in this case from time to time. It is stated that Section 24
(8) Cr.P.C. uses the words "for the purpose of any case or class of
cases" and a general appointment cannot overlap a specific
appointment.
13. Mr. Atmaram N S Nadkarni, learned senior counsel and
Mr.Vijay Aggarwal, learned counsel had also drawn attention of this
Court to orders dated 16th March, 2020, 11th April, 2011 and 27th
April, 2011 in Civil Appeal No. 10660/2010 and submitted that the
Hon'ble Apex Court has been monitoring appointment of trial court
Judge as well as Special Public Prosecutor in 2G case, and since by
virtue of Gazette notification dated 8th February, 2018 (modified on
16th February, 2018) Mr. Tushar Mehta, learned ASG was appointed
as Special Public Prosecutor for conducting appeals/ revisions in
Delhi High Court arising out of 2G case and also since the said
notification of 16th February, 2018 is not superceded by any other
notification before filing the appeal, therefore, filing of appeal by
Mr.Sanjeev Bhandari, learned Special Public Prosecutor without any
sanction under Section 378(2) Cr.P.C. is bad in law. Reliance was
placed upon decision of Hon'ble Rajasthan High Court in State Vs.
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Devi Singh RLW 1986 Raj 600 and State of Rajasthan Vs.
Manbhar (1981) 2 SCC 525 and decision of Hon'ble Kerla High
Court in State of Kerala Vs. Kolarveetil Krishnan 1982 Crl.LJ
14. It was submitted that grant of sanction to file an appeal under
Section 378(2) Cr.P.C. is akin to grant of sanction to prosecute under
Section 197 Cr.P.C. or under Section 19 of the Prevention of
Corruption Act, 1988 (PC Act) and in that regard reliance was
placed upon Hon'ble Apex Court decisions State of Karnataka Vs.
Ameerjan 2007 11 SCC 273 and decision of this Court Ashok
Kumar Aggarwal Vs. Central Bureau of Investigation 2007 (10)
AD (Delhi) 73 and Mohd. Iqubal Ahmed Vs. State of Andhra
Pradesh 1979 (4) SCC 172.
15. It was also urged by Mr. Atmaram N S. Nadkarni, learned
senior counsel & Mr. Vijay Aggarwal, learned counsel that the
criminal leave petition has been filed under the affidavit of one Mr.
V.M.Mittal, Deputy SP, who was actually not competent to swear on
affidavit as during the trial it had come on record that his
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investigation was confined to transactions pertaining to two
companies only.
16. Further, to submit that no documents which are essential
should be permitted to be concealed from the Court, reliance was
placed upon decision of Hon'ble Apex Court in Nitya
Dharmananda alias K. Lenin & Anr. Vs. Gopal Sheelum Reddy
2018 (2) SCC 93 and State of Kerala Vs. Raghvan 1974 Cri.L.J.
1373.
17. At the hearing, Mr. Vijay Aggarwal, learned counsel
appearing for petitioner- Rajiv Agarwal pointed out various
typographical errors and lacune in the criminal leave to appeal i.e.
Cr.L.P.185/2018 to submit that the leave to appeal has been filed in a
mechanical manner and without application of mind.
18. Mr. Vijay Aggarwal, learned Counsel drew attention of this
Court to para 23.20 of CBI Manual, which reads as under:-
"If an important case, so categorized for close
monitoring, on the basis of the amount
involved, status of the accused, the sensitive
nature of the investigation involving elected
representatives etc., ends in acquittal, a
reference should be made to the Attorney
General or one of his nominees to determine
whether the acquittal was as a result of flaws
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in investigation or prosecution, fix
responsibility for such flaws and to examine
whether it is a fit case for appeal. Such
references should be drafted by the Director
of Prosecution in consultation with Director,
CBI and should invariably contain their own
respective views."
19. Learned counsel submitted that the criminal leave to appeal
has been filed by the CBI without scrutiny of judgment, evidence
and documents placed on record before the trial court and also
without application of mind, as CBI has filed the appeal in a
mechanical manner against all the accused persons, without
adverting the flaws and shortcomings pointed out in the impugned
judgment of 21st December, 2017 and determining against which
respondent appeal deserves to be filed and against which not.
20. Learned counsel, Mr. Vijay Aggarwal, has also placed
reliance upon the decision in Jayrajbhai Jayantibhai Patel v.
Anilbhai Nathubhai Patel, (2006) 8 SCC 200 regarding judicial
review of administrative decision. The relevant para of the said
judgment reads as under:-
"18. Having regard to it all, it is manifest that
the power of judicial review may not be
exercised unless the administrative decision is
illogical or suffers from procedural
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impropriety or it shocks the conscience of the
court in the sense that it is in defiance of logic
or moral standards but no standardised
formula, universally applicable to all cases,
can be evolved. Each case has to be
considered on its own facts, depending upon
the authority that exercises the power, the
source, the nature or scope of power and the
indelible effects it generates in the operation
of law or affects the individual or society.
Though judicial restraint, albeit self-
recognised, is the order of the day, yet an
administrative decision or action which is
based on wholly irrelevant considerations or
material; or excludes from consideration the
relevant material; or it is so absurd that no
reasonable person could have arrived at it on
the given material, may be struck down. In
other words, when a court is satisfied that
there is an abuse or misuse of power, and its
jurisdiction is invoked, it is incumbent on the
court to intervene. It is nevertheless, trite that
the scope of judicial review is limited to the
deficiency in the decision-making process and
not the decision."
(emphasis supplied)
21. Mr. Vijay Aggarwal, learned counsel drew attention of this
Court to the impugned judgment of 21st December, 2017 to submit
that prosecution had failed to prove its case. He specifically referred
to deposition of star witnesses A.K.Srivastava (PW60); former AG
Late Shri G.W.Vanhawati and Mr. D.S.Mathur, Ex Telecom
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Secretary and various observations in the impugned judgment
returning the finding that the present case is of no evidence.
22. Mr. Vijay Aggarwal, learned counsel also drew 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
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."
He submitted that petitioner/CBI has failed to produce the
relevant document to show that Government functionaries have
applied their mind before presentation of the appeal. No document
has been placed on record to substantiate the fact that Mr.Sanjeev
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Bhandari, learned Special Public Prosecutor had filed the instant
petition on the instructions of State Government or the CBI.
23. It was further argued by Mr. Vijay Aggarwal, learned counsel
that reliance placed by CBI upon decision of Punjab and Haryana
High Court in Lal Singh v State of Punjab 1981 CriLJ 1069 is
clearly misplaced as in para 22 of the said judgment, it has been
observed that formation of an opinion for preferring an appeal
against the judgment of acquittal is inherently administrative in
nature, which can be interfered in writ jurisdiction.
24. Learned counsel for petitioners, especially Mr. N. Hariharan,
learned Senior Counsel and Mr. Vijay Aggarwal, learned counsel
submitted that the decision of the Central Government to direct filing
of an appeal against acquittal, being an administrative decision must
be in compliance with the Wednesbury principle of reasonableness.
They also submitted that the Wednesbury principle demands that
reasons for arriving at the decisions must be recorded in the
executive order i.e. the direction is bad in law if it is not a reasoned
order.
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25. Besides the aforesaid grounds taken by Mr.Vijay Aggarwal,
learned counsel some additional grounds have also been taken in
W.P.(C) 8021/2020. It is stated that as per Chapter IV of Delhi High
Court Rules, titled as "Presentation of Plaint and Other Documents"
mandates that all documents are required to be filed at the filing
counter. Another ground taken in the petition is that as per circular of
1st September, 2020, all filings have to be accompanied by an
affidavit. It is submitted that CBI has produced the documents before
this Court and not filed them in accordance with the procedure
prescribed.
26. At the hearing, Mr. Atmaram N S Nadkarni, learned senior
counsel pointed out that the Communication of the Government of
India opining that it was a fit case to prefer an appeal against the
judgment dated 21st 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 decision to engage Mr. Tushar Mehta, learned ASG to
represent in the case, is dated 17th January, 2018, whereas on the date
of filing of the appeal there was no Special Public Prosecutor
engaged for 2G case and in the absence thereof, it is necessary to be
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bring on record the relevant document as to who had given the
approval to prefer an appeal against the impugned judgment dated
21st December, 2017.
27. Mr. Atmaram N S Nadkarni, learned senior counsel drew
attention of this Court to Section 378(2) which reads as under:-
Section 378(2) in The Code Of Criminal
Procedure, 1973
(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
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.
28. Mr. Nadkarni, learned senior counsel submitted that the letter
dated 17th January, 2018 only talks about appointment of Mr. Tushar
Mehta, learned ASG in this case and it nowhere issues any direction
to file the appeal. He further stated that the sanction should have
been issued by the Ministry of Home Affairs after report of opinion
from Ministry of Law and Justice, whereas this letter has been issued
by the Ministry of Personnel, Public Grievances and Pensions,
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Department of Personnel & Training, (DoPT) Government of India.
Learned counsel emphasized that according to Entries 35 and 36 of
the Allocation of Business Rules, 1961, Criminal Procedure is a
subject allocated to the Ministry of Home Affairs and that being the
case, DoPT could not have directed filing of an appeal. He further
submitted that the direction dated 17th January, 2018 has been signed
by an Under Secretary to the Government of India and has not been
issued in the name of the President and is, therefore, violative of
Article 77(1) of the Constitution of India and needs to be set aside.
29. Mr. Atmaram N S Nadkarni and Mr. N. Hariharan, learned
senior counsels and Mr. Vijay Aggarwal, Mr. Mudit Jain and
Mr.D.P. Singh, learned counsels also drew attention of this Court to
various provisions of Scheme of the Government of India
(Allocation of Business) Rules, 1961 to submit that functions
pertaining to "criminal law" and "criminal procedure" are entrusted
to the Ministry of Home Affairs and not DoPT.
30. Mr. Ramesh Gupta, learned senior counsel submitted that the
respondents were roped in a false and concocted case and vide
impugned judgment of 21st December, 2017, they have been given a
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clear acquittal. Learned senior counsel further submitted that the
appellate court has to bear in mind the fact that in case of acquittal,
there is double presumption in favour of the accused. First
presumption of innocence is available to the accused under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless proved guilty by a
competent court of law and thereafter, the accused having been
acquitted, the presumption of his innocence stands further
reinforced, reaffirmed and strengthened and appellate court should
be very slow in interfering with the same.
31. Mr. Ramesh Gupta, learned senior counsel once again drew
attention of this Court to the provisions of Section 378(2) Cr.P.C.
and raised objections with regard to sanction and authority of learned
Special Public Prosecutor for CBI to file the leave to appeal i.e.
Crl.L.P.185/2018. He also drew attention of this Court to Delhi High
Court Rules (Vol.III), Chapter-25 E "Appeal and Revision-
Criminal" and various provisions of CBI Manual. He adopted
arguments raised by Mr. Nadkarni, learned senior counsel with
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regard to Allocation of Business Rules, 1961 and Article 77(3) of the
Constitution of India.
32. It was contended by learned counsels for the petitioners that
there is a difference between acquittal granted due to the fact that the
case has not been proved beyond reasonable doubt and acquittal on
the basis of no evidence appearing against the accused. It was stated
that the instant case is of no evidence and therefore, the Central
Government files as well as notings, must reflect application of mind
as to why an appeal should be filed and since no such record has
been produced, the approval/ sanction is bad in law. It is further
prayed that the appeal has also not been filed by the Public
Prosecutor especially empowered to do so, and therefore, this Court
should hold that the same is non est, null and void and without any
sanction and should not entertain the same.
33. On the other hand, Mr. Sanjay Jain, learned ASG raised
serious objections to the filing of these writ petitions and stated that
the criminal leave to appeal was filed two years ago and when this
Court commenced hearing, respondents by filing applications after
applications questioned applicability of Section 378 (2) Cr.P.C. and
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Prevention of Corruption (Amendment) Act, 2018 and now, these
writ petitions have been filed only to delay the proceedings.
34. Learned ASG submitted that Section 378 Cr.P.C only
mandates that the appeal must be instituted on the direction of the
Central Government to a Public Prosecutor. He submitted that
Section 378 Cr.P.C. only provides the mechanism to file the appeal
against the order of acquittal and does not contemplate any
sanction/approval of the Central Government.
35. Learned ASG submitted that in the light of decision of the
Hon'ble full-bench of Punjab and Haryana High Court in Lal Singh
v. State of Punjab (Supra), it is a settled proposition of law that the
issuance of a direction under Section 378 of the Code is an executive
decision, which does not affect the rights of any person, as right to
file an appeal is a substantive right of the Central Government and
therefore, this Court need not look into the reasons for the issuance
of such a direction.
36. Learned ASG next submitted that there is no need to test the
direction on the anvil of the Wednesbury Principle because the
direction is not amenable to judicial review, as the same is an
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internal matter and does not cause any prejudice to the petitioners. It
was further submitted by learned ASG that the provisions of The
Allocation of Business Rules, 1961 states that the Ministry of
Personnel and Training (DoPT) is the administrative authority for
Delhi Special Police Establishment (CBI), including its legal
division, and therefore, DoPT was the competent authority for
issuing the direction to the CBI to institute an appeal against the
order of acquittal.
37. Learned ASG further submitted that submissions with regard
to appointment of Special Public Prosecutor and ASG in 2G case;
procedure for filing appeal prescribed in Delhi High Court Rules;
contents of CBI Manual etc. have already been addressed in
Crl.M.A. 13703/2020; Crl.M.A. 13851/2020 & Crl.M.A.
14091/2020. He, therefore, submitted that the present writ petitions
are unfounded and untenable and do not call for issuance of any
notice and are required to be dismissed.
38. I have heard the rival contentions raised by learned counsels
representing both the parties and given my thought to the matter. The
preliminary issue for consideration before this Court is as to whether
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Section 378(2) of the Cr.P.C enjoins the Government to pass a
reasoned order while directing filing of an appeal to the Public
Prosecutor and whether the Court can look into such reasons.
39. The provision of Section 378(2) of Cr.P.C. mandates that an
appeal must be instituted by a Public Prosecutor on the direction of
the Central Government. Section 378(2) Cr.P.C. does not
contemplate that the Central Government has to show what material
was considered by the parties before filing the appeal. In fact,
Section 378(2) Cr.P.C. presupposes the decision-making process and
contemplates only the communication of such a decision in the form
of a direction to the Public Prosecutor. The Court, has thus, to satisfy
itself that such a direction has been issued by the Central
Government and the appeal has been instituted by a Public
Prosecutor acting on such a direction.
40. The learned counsels for the petitioners want this Court to go
into the files, notings, opinion and sanction/ approval, if any, given
by the Government and also to analyze the same and direct the
respondents to place them on record. In essence, they intend that
whole of the process before filing of criminal leave to appeal should
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be analyzed, scanned and examined in detail by this Court so as to
satisfy itself whether there were deficiencies, irregularities and
illegalities in the judgment of learned trial court which warranted
filing of the present appeal. The learned counsels further intend this
court to examine the fact whether Law Officers as well as
Government officials of the concerned Ministries have applied their
mind and arrived at a just and correct decision i.e. to file the present
appeal.
41. The contentions of learned counsels though may apparently
seem to be convincing, however, a deep analysis of the same reveals
that it is against the settled principles of law as well as provision of
Section 378(2) Cr.P.C. In fact, the learned counsels for the
petitioners want this court to read the words 'sanction or approval'
in Section 378(2) Cr.P.C. which Legislature in its wisdom has
chosen not to provide the same in the provision. For ready
reference, Section 378 Cr.P.C. is reproduced here.
"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
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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
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,
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no appeal from that order of acquittal shall lie
under sub- section (1) or under sub- section
(2)."
42. Though, more or less, similar submissions were raised in
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A.
14091/2020 and have been rejected vide a detailed order of even
date, however, since these questions have been raised again by way
of Civil Writs, this court will adjudicate the same trying its best to
avoid repetition of what has been discussed and adjudicated in the
earlier applications moved under Section 378(2) Cr.P.C.
43. As discussed earlier, Section 378 (2) Cr.P.C. no doubt
contemplates a direction by the Government to the Public
Prosecutor to file an appeal. But how and why the Government has
formed an opinion to file the appeal is certainly beyond the scope of
Section 378(2) Cr.P.C. As decided in applications moved under
Section 378(2) Cr.P.C., it is only subjective satisfaction of the
Government whether to file an appeal or not? How it has arrived at
the decision and whether the files and notings reflect that detailed
discussions which have taken place and reasons have been given
after analyzing the judgment to file the appeal, is none of the
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concern of the petitioners. The Government or its officials are free
to decide and take an independent decision whether it is a fit case to
file an appeal against the order of acquittal. No shackles or restrain
can be put upon the Government as neither the Statute nor common
sense permits the same. This Court is not at all supposed to sit over
the decision taken by the Government and examine the notes and
opinion to find out whether the decision of the Government to file
the appeal is just, proper and fair and the impugned judgment has
been properly analyzed. If this Court has to examine all the
concerned papers, opinion, notings and files and to decide whether
the decision to file the appeal is correct first, then the whole purpose
of hearing the appeal will stand defeated as the decision will then be
rendered by the Court on the basis of notings/ opinions in the
Government files. This certainly was never the intention of the
Legislature and neither it has been so provided in Section 378 (2)
Cr.P.C. If the contention of learned counsels for the petitioners is
accepted, it will lead to an absurd situation i.e. even before filing the
appeal, the decision of the Government will be challenged by way of
writ petition and the Court will have to first give its findings
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whether the opinion framed by its Law Officers is correct and filing
of appeal is justified. This Court is afraid that such an interpretation
was neither contemplated nor can be given by this Court in view of
the unambiguous language of Section 378 (2) Cr.P.C.
44. This Court is, therefore, of the opinion that prayer made by the
petitioners cannot be accepted and there cannot be any judicial
review of any notings/drafts/opinion given by the Government
Officials or Law Officers which resulted into filing of an appeal. In
fact, it is while hearing the appeal only that this Court will apply its
judicial mind and pass a reasoned order whether the appeal filed by
the appellant is maintainable or not. This Court is further of the
opinion that if the contention of learned counsels for the petitioners
is accepted, it will lead to chaos because whenever a criminal case
or appeal is filed in Court, a writ will also be filed by the aggrieved
person/accused/respondent calling for the police/ Government
records and expecting the Court to go through the internal notings
and to first satisfy itself whether there was sufficient application of
mind by the police officers/ Government officials and, thus, no
criminal case or appeal will be able to proceed further as Court will
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first examine the internal documents of the Government and give its
findings. This certainly cannot be said to be the intention of the
Legislature and it will not only result in delay of the proceedings but
will in fact bring to an halt, the criminal administration of justice.
45. Let this Court now address the contentions of the learned
counsels for the petitioners, especially Mr. Vijay Aggarwal, learned
counsel who has raised certain issues, which according to him go to
the root of the matter and this Court must decide the same before
proceeding further. It was argued that a sanction or approval by a
competent authority to file an appeal is mandatory as per section
378(2) Cr.P.C. and since it has not been placed on the record, this
Court cannot proceed further in the matter.
46. This Court has carefully considered the above submission and
is of the opinion that the same cannot be accepted for the simple
reason that no sanction akin to previous sanction required under
Section 196 Cr.P.C. or 197 Cr.P.C. is provided in Section 378(2)
Cr.P.C.
47. The relevant provision of Section 196 or 197 Cr.P.C. run as
follows:-
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196. Prosecution for offences against the
State and for criminal conspiracy to commit
such offence.
(1) No Court shall take cognizance of-
(a) any offence punishable under Chapter VI
or under section 153A, of Indian Penal Code,
or 2 Section 295 A or sub section (1) of section
505] of the Indian Penal Code (45 of 1860 )
or
(b) a criminal conspiracy to commit such
offence, or
(c) any such abetment, as is described in
section 108A of the Indian Penal Code (45 of
1860 ), except with the previous sanction of
the Central Government or of the State
Government.
(1A) 2 No Court shall take cognizance of-
(a) any offence punishable under section 153B
or sub- section (2) or sub- section (3) of
section 505 of the Indian Penal Code (45 of
1860 ), or
(b) a criminal conspiracy to commit such
offence, except with the previous sanction of
the Central Government or of the State
Government or of the District Magistrate.]
197. Prosecution of Judges and public
servants.
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable
from his office save by or with the sanction of
the Government is accused of any offence
alleged to have been committed by him while
acting or purporting to act in the discharge of
his official duty, no Court shall take
cognizance of such offence except with the
previous sanction-
(a) in the case of a person who is employed or,
as the case may be, was at the time of
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commission of the alleged offence employed,
in connection with the affairs of the Union, of
the Central Government;
(b) in the case of a person who is employed or,
as the case may be, was at the time of
commission of the alleged offence employed,
in connection with the affairs of a State, of the
State Government: 1 Provided that where the
alleged offence was committed by a person
referred to in clause (b) during the period
while a Proclamation issued under clause (1)
of article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression" State Government" occurring
therein, the expression" Central Government"
were substituted.
48. The above provisions of law categorically envisage that
previous sanction is required in the cases specified above. The said
mandate i.e. requirement of previous sanction is conspicuously
absent in Section 378 Cr.P.C. Thus, it cannot by any stretch of
imagination be held that previous sanction of Central Government is
required to be placed on record and the same is pre-requisite for
filing an appeal.
49. The learned counsels for respondents have next submitted that
strict adherence to the Allocation of Business Rules, 1961 framed
under Article 77 of the Constitution of India is required and in this
regard, reliance is placed upon Hon'ble Apex Court's decision in
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MRF Limited v Manohar Parrikar and Others, (2010) 11 SCC 374.
Article 77 of the Constitution of India which runs as follows:-
"Conduct of business of the Government
of India. ...
(1) All executive action of the Government of
India shall be expressed to be taken in the
name of the President
(2) Orders and other instruments made and
executed in the name of the President shall be
authenticated in such manner as may be
specified in rules to be made by the President,
and the validity of an order or instrument
which is so authenticated shall nor be called
in question on the ground that it is not an
order or instrument made or executed by the
President
(3) The President shall make rules for the
more convenient transaction of the business of
the Government of India, and for the
allocation among Ministers of the said
business."
50. Learned counsels for respondents have argued that the Gazette
notification dated 17th January, 2018, vide which Mr. Tushar Mehta,
learned ASG (now learned Solicitor General) was appointed as
Special Public Prosecutor (CBI) for conducting prosecution, appeals/
revisions or other proceedings arising out of 2G Spectrum cases and
Gazette Notification dated 6th May, 2019, vide which Mr. Sanjay
Jain, learned ASG has been appointed as Special Public Prosecutor
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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 similarly, that of Mr. Sanjeev
Bhandari, learned Special Public Prosecutor for CBI dated 6 th March,
2014, have not been expressed in the name of the President and,
therefore, the same is not in accordance with law and cannot be
considered by this Court.
51. This Court has carefully considered the above submission.
Learned counsels in this regard have also placed reliance upon
decisions of the Hon'ble Apex Court in State of Bihar v Rani
Sonabati Kumari (1961) 1 SCR 728; J.P. Bansal Vs. State of
Rajasthan (2003) 5 SCC 134 and D.S. Sharma v Union of India
ILR (1970) I Del. and decision of Rajasthan High Court in Dr. A.K.
Datta v Union of India S.B Criminal Appeal No. 1 of 1971.
52. This Court has also carefully gone through the above
decisions. There is no quarrel with the proposition of law laid down
in the abovesaid decisions. However, the same are distinguishable on
the basis of facts and circumstances stated therein. It is a settled law
that Article 77 of the Constitution of India is not mandatory but is
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only directory in nature. Even if an order/ letter/ sanction / approval/
notification is not expressed in the name of the President or
Governor, it does not make it non est or void and invalid. The
Hon'ble Apex Court's in Air India Cabin Crew Assn. v.
Yeshaswinee Merchant, (2003) 6 SCC 277 has held as under:-
"72. In our opinion, reference to Article 77 is
wholly inappropriate. The exercise of
statutory power under Section 34 by the
Central Government, even though not
expressed to have been taken in the name of
President, does not render it invalid. Clause
(2) of Article 77 insulates an executive action
of the Government formally taken in the name
of President from challenge on the ground
that it is not an order or instrument made or
executed by President. Even if an executive
action of the Central Government is not
formally expressed to have been taken in the
name of President, Article 77 does not
provide that it would, therefore, be rendered
void or invalid. We need not, therefore, deal
with the argument advanced on the basis of
Article 77 of the Constitution because the
respondent Association itself is relying on the
directive dated 16-10-1989 of the Central
Government which is not formally expressed
in the name of President in terms of Article 77
of the Constitution."
(emphasis supplied)
53. Thus, as per the law laid down by the Hon'ble Apex Court,
even if an executive action of the Central Government is not
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formally expressed to have been taken in the name of the President
of India, it would not be rendered void or invalid. Further, it is also a
settled law that each and every executive decision need not be in the
name of President or Governor. The said point has been discussed by
the learned author Durga DasBasu in his Commentary on the
Constitution of India (8th Edition, 2008). The learned author has
explained Article 77 of Constitution of India as under:-
'Executive Action'
1.Cl. (l) is confined to cases where the executive
action is required to be expressed in the shape
of a formal order or notification or any other
instrument. The expression "executive action" in
Art. 166(1) (Art. 77 is similarly worded) is
comprehensive enough and 'apt' to include even
orders which emerge after and embody the
results of judicial or quasi-judicial disposal by
Government. The scope of the expression
includes initiation of legislation, maintenance of
order, promotion of social welfare, direction of
foreign policy and carrying on or supervision of
general administration of the State. A
notification is not an executive order, but a
piece of subordinate legislation made by the
Government. But if it is duly published in the
Gazette of India over the signature of the Under
Secretary who is authorised for this purpose,
there is no violation of Art. 77.Usually executive
decision is taken on the office files by way of
notings or endorsements made by the
appropriate minister or officer. If every
executive decision has to be given a formal
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expression the whole governmental machinery
will be brought to a standstill. But when an
executive decision affects an outsider or is
required to be officially notified or
communicated, it should be normally expressed
in the form mentioned in Art 166(1).
(emphasis supplied)
54. There cannot be any dispute with the fact that it is very
difficult for the Government to take each and every decision in the
name of President or Governor. It is only those executive decisions
or actions which relate to some Legislation, maintenance of order or
promotion of social welfare, direction of foreign policy etc. which
need to be in the name of the President or the Governor. All other
decision taken by the Government can be published under the name
and signature of Under Secretary, who is authorized for the said
purpose. Thus, if every executive document is to be given a formal
expression in the name of the President, the Government machinery
will come to a halt. Article 77(1) of the Constitution of India
mandates that issuance of an instrument in the name of the President
applies only to the cases where the executive action is to be
expressed in terms of a formal order, or alternatively in a case where
the instrument reflects a quasi-judicial decision. Direction to the
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Public Prosecutor to file an appeal or an authorization in his/her
favour is an internal communication and it does not require an
expression in formal terms i.e. in the name of President.
55. Learned counsels for the respondents have further argued that
since the leave to appeal filed by the respondent/CBI is not as per the
procedure prescribed under the law and is, therefore, violative of
Article 21 of the Constitution of India. This Court has considered
the contention of learned counsels. As discussed earlier, there is
nothing on record to suggest that leave to appeal has not been filed in
accordance with law under Section 378(2)Cr.P.C. The leave to
appeal filed by the CBI, is in fact its substantive right which has
been given to it by the Statute and therefore, there cannot be any
question of violation of Article 21 of Constitution of India. The
contention of learned counsels, therefore, cannot be accepted.
56. Learned counsels for the petitioners have also argued that
when a power is given to do a certain thing, then the said thing must
be done in that way or not at all. In the opinion of this Court, there is
no quarrel with the above proposition of law. The documents sought
by the respondents have been shown and supplied to the petitioners.
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As discussed earlier, the other documents i.e. the internal notings in
Government files cannot be placed on record for the reason that
Section 378 Cr.P.C. is totally silent about it and the respondents have
a substantive right to file an appeal and process for filing the same
cannot be subjected to judicial review.
57. Learned counsels for the petitioners have relied upon a Punjab
and Haryana High Court decision in State of Punjab Vs. Mohinder
Singh 1982 SCC Online P&H 97 to show that if Public Prosecutor
is not authorized to file an appeal, the same cannot be considered by
the Court. This Court has gone through the above judgment and is of
the opinion that there is no quarrel with the preposition of law laid
down therein. The said decision contemplates that a Public
Prosecutor by virtue of his appointment vide Section 24 of the Code
of Criminal Procedure, is not required to file a vakalatnama/ Power
of Attorney to institute or for conducting a criminal appeal but an
appeal against acquittal cannot be filed by him on his own unless, he
is specifically directed by the Government concerned and when it is
disputed, he should be able to dispel the doubt. Normally the Court
will accept the statement of learned Public Prosecutor that he has
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been authorized to file the appeal but if it is doubted for substantial
reasons, he must dispel the doubt.
58. However, in the present appeal there is an authorization dated
17th January, 2018, vide which Mr. Tushar Mehta, learned ASG
(now learned Solicitor General) was appointed as Special Public
Prosecutor (CBI) for conducting prosecution, appeals/ revisions or
other proceedings arising out of 2G Spectrum cases and the same
which 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
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Mehta in the above case. Necessary further action may be
taken in the matter accordingly.
(Khushboo Goel Chowdhary)
Deputy Secretary to the Govt. of 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
59. In addition, there is also a notification dated 6 th May, 2019
vide which Mr. Sanjay Jain, learned ASG was also 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 Supreme 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
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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
Copy Forwarded for information to
1. The Registrar, Supreme 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
60. Vide Notification dated 6th March, 2014 issued by
Government of India, Mr. Sanjeev Bhandari has been appointed as
the Special Public Prosecutor for the CBI and authorized for
conducting the prosecution appeals, revisions and other matters
arising out of the cases investigated by the Delhi Special Police
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Establishment (CBI) and the said Notification is quoted hereunder
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,
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)
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Under Secretary to Government of India
61. A perusal of the afore referred notifications/ authorization
clearly reveals that Mr. Tushar Mehta, learned ASG, Mr. Sanjay
Jain, learned ASG and Mr. Sanjeev Bhandari, learned Special Public
Prosecutor for CBI have been authorized to conduct the appeal. The
contention of learned counsels for the respondents is, therefore,
devoid of any substance and is rejected.
62. Learned Senior counsel Mr. Atmaram N S Nadkarni argued
that Ministry of Home Affairs is the appropriate Ministry to take
decision as regards filing of appeal. In this regard, he has referred to
Allocation of Business Rules and submitted that Criminal Procedure
Code falls under Ministry of Home Affairs and, therefore, DOPT
cannot consider or pass any directions for filing the appeal.
63. Learned ASG on the other hand has argued that CBI falls
under the Ministry of Personnel, Public Grievance and Pensions and
it is clear from Clause 20A of Government of India (Allocation of
Business) Rules, 1961. This Court has carefully gone through the
same and the relevant portion thereof. In this regard, let this Court
first examine the subjects which are being dealt by Ministry of
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Personnel, Public Grievance and Pensions under the DoPT. The
subjects are as follows:-
"MINISTERY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSIONS (KARMIK,
LIK SHIKAYAT TATHA PENSION
MANTRALAYA)
A. DEPARTMENT OF PERSONEL
AND TRAINING
(KARMIK AUR PRASHIKSHAN VIBHAG)
I. RECRUITMENT, PROMTION AND
MORALE OF SERVICES
XXXXXXX
II. TRAINING
XXXXXXX
III. VIGILANCE AND
DISCIPLINE
20. (a) Central Vigilance Commission;
(b) All policy matters pertaining to
vigilance and discipline among public
servants.
(c) Relationship between Members of
Parliament and the Administration.
20A. The Prevention of Corruption Act
1947 (2 of 1947); the Central Bureau of
Investigation (the Delhi Special Police
Establishment including the Legal Division,
the Technical Division, the Policy Division,
and the Administration Division); the Food
Offences Wing and Economic Offences
Wing."
64. Let this Court now also refer to the subjects falling under
Ministry of Home Affairs. The relevant subjects under Law and
Order are as follows:-
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"II LAW AND ORDER
18. XXXX
XXXX
34. XXXX
35. Criminal Law.
36. Criminal Procedure."
65. A perusal of the subjects falling under Ministry of Personnel,
Public Grievance and Pensions reveals that DoPT is the Nodal
Ministry controlling CBI and is clear from Clause 20A which runs
as follows:-
"III VIGILANCE AND DISCIPLINE
19. XXXX
20A. The Prevention of Corruption Act,
1947 (2 of 1947); the Central Bureau of
Investigation (the Delhi Special Police
Establishment including the Legal Division,
the Technical Division, the Policy Division,
and the Administration Division); the Food
Offences Wing; and Economic Offences
Wing."
66. This is not in dispute that Cr.P.C. is subject matter of Ministry
of Home Affairs. However, as per Allocation of Business Rules,
1961, CBI has been placed under the DoPT. This Court is of the
opinion that no doubt Criminal Law and Criminal Procedure are the
subject matters of Ministry of Home Affairs but it is difficult to
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ignore Clause 20A which clearly contemplates that CBI falls under
DoPT. The whole of the Allocation of Business Rules, 1961 have to
be read harmoniously and cannot be read in such a manner that
Clause 20A is totally ignored because of the reason that subject
'Criminal Law' and 'Criminal Procedure' appearing in entries 35 &
36 fall under Ministry of Home Affairs. In the opinion of the court,
merely because Criminal Law and Criminal Procedure falls within
the domain of Ministry of Home Affairs, it does not in any way
suggest that DoPT ceases to be a controlling ministry of CBI. In
view of the fact that CBI falls under the DoPT, it was for DoPT to
appoint and engage the services of learned ASG and not the Ministry
of Home Affairs. However, it is repeatedly argued by learned
counsels for the petitioners that when 'Criminal Law and Criminal
Procedure' have been placed under Ministry of Home Affairs, then
why appeal which comes under the provisions of Cr.P.C has not
been directed to be filed by Ministry of Home Affairs but by DoPT.
The answer to the above contention is very simple and clear. The
subject 'Criminal Procedure' for the purpose of enactment/
amendment etc. will, no doubt, fall under Ministry of Home Affairs.
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But in case an appeal is to be filed by CBI, which falls under DoPT,
as per Clause 20A of Allocation of Business Rules, 1961, the said
Ministry will have to take a call whether to file an appeal or not.
This, in the opinion of this Court is the only interpretation which can
be given to the Allocation of Business Rules, 1961 without creating
any conflict or confrontation between different clauses and without
rendering any entry redundant.
67. Article 77(3) of the Constitution of India provides for the
creation of rules of allocation of business to facilitate the better
transaction of business between different wings of the Government.
The Allocation of Business Rules, therefore, must be construed from
the lens of such facilitation of business and consequently, the entries
must be construed harmoniously. If the entry/subject of
administration of CBI vests in the DoPT, there appears to be no
reason to exclude it from the aegis of the DoPT. If this Court were to
accede to the construction put forward by the petitioners, it would
lead to an incongruous situation where the CBI would be under the
administrative control of the DoPT but would need approval from
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the Ministry of Home Affairs every time a decision has to be taken
by the Central Government under the Cr.P.C.
68. Now coming to the number of judgments cited by learned
counsels for the petitioners in support of their contentions. This
Court has carefully gone through the same 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.
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69. In Padma Sundara Rao v. State of Tamil Nadu (2002) 3 SCC
533 the Hon'ble Apex Court has held that the ratio of a judgment has
to be read in the context of the facts of the case and even a single
fact can make a difference. In para 9 of the said judgment, the Apex
Court has held as under:-
"9. Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation
of the decision on which reliance is placed.
There is always peril in treating the words of
a speech or judgment as though they are
words in a legislative enactment, and it is to
be remembered that judicial utterances are
made in the setting of the facts of a particular
case, said Lord Morris in British Railways
Board v. Herrington. Circumstantial
flexibility, one additional or different fact may
make a world of difference between
conclusions in two cases."
70. In Bharat Petroleum Corporation Ltd v. N.R. Vairamani,
(2004) 8 SCC 579, the Apex Court has held that a decision cannot be
relied on without considering the factual situation. The Apex Court
observed as under:-
"9. Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation
of the decision on which reliance is placed.
Observations of courts are neither to be read
as Euclid's theorems nor as provisions of a
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Statute and that too taken out of their context.
These observations must be read in the context
in which they appear to have been stated.
Judgments of courts are not to be construed as
Statutes. To interpret words, phrases and
provisions of a Statute, it may become
necessary for judges to embark into lengthy
discussions but the discussion is meant to
explain and not to define. Judges interpret
Statutes, they do not interpret judgments. They
interpret words of Statutes; their words are
not to be interpreted as Statutes. In London
Graving Dock Co. Ltd. v. Horton [1951 AC
737: (1951) 2 All ER 1 (HL)] (AC at p. 761)
Lord Mac Dermott observed: (All ER p. 14 C-
D)
"The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J., as though they were part of an Act
of Parliament and applying the rules of
interpretation appropriate thereto. This is not
to detract from the great weight to be given to
the language actually used by that most
distinguished judge..."
10. In Home Office v. Dorset Yacht
Co. [(1970) 2 All ER 294 : 1970 AC 1004 :
(1970) 2 WLR 1140 (HL)] (All ER p. 297g-h)
Lord Reid said,
"Lord Atkin's speech ... is not to be treated as
if it were a statutory definition. It will require
qualification in new circumstances".
Megarry, J. in Shepherd Homes Ltd. v.
Sandham (No. 2) [(1971) 1 WLR 1062 :
(1971) 2 All ER 1267] observed:
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"One must not, of course, construe even a
reserved judgment of Russell, L.J. as if it were
an Act of Parliament."
And, in Herrington v.British Railways
Board [(1972) 2 WLR 537 : (1972) 1 All ER
749 (HL)] Lord Morris said: (All ER p. 761c)
"There is always peril in treating the words of
a speech or a judgment as though they were
words in a legislative enactment, and it is to
be remembered that judicial utterances made
in the setting of the facts of a particular case."
11. Circumstantial flexibility, one
additional or different fact may make a world
of difference between conclusions in two
cases. Disposal of cases by blindly placing
reliance on a decision is not proper.
12. The following words of Lord Denning
in the matter of applying precedents have
become locus classicus:
"Each case depends on its own facts and a
close similarity between one case and another
is not enough because even a single
significant detail may alter the entire aspect,
in deciding such cases, one should avoid the
temptation to decide cases (as said by
Cardozo) by matching the colour of one case
against the colour of another. To decide
therefore, on which side of the line a case
falls, the broad resemblance to another case is
not at all decisive.
xxx xxx xxx
Precedent should be followed only so far as it
marks the path of justice, but you must cut the
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dead wood and trim off the side branches else
you will find yourself lost in thickets and
branches. My plea is to keep the path to
justice clear of obstructions which could
impede it."
71. Thus, the judgments cited by learned counsel for the
petitioners which are based upon their own peculiar facts and
circumstances are distinguishable and do not help the learned
counsels for the petitioners.
72. In view of the above discussion, this Court is of the opinion
that it is true that under Article 226 of the Constitution, an
unreasonable order can be challenged and set aside. However, it is
also true that the said order can only be challenged if the Statute
enjoins upon the State such an obligation or that such decision
making process requires the adherence to the principles of natural
justice or the internal decision unjustifiably violates the right of an
aggrieved person. The State has a substantive right to file an appeal
against acquittal and this is subjective satisfaction of the
Government. The decision of the Full Bench of the Punjab and
Haryana High Court in Lal Singh (supra), which has also arisen out
of Article 226 petition itself, specifically observes that the decision
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making process under Section 378 Cr.P.C. is in the realm of
subjective satisfaction of the Government, which need not be
scrutinized by this Court and the only enquiry that the Court must
limit itself is to find out whether the Public Prosecutor has acted on
the direction of the appropriate Government. In these circumstances,
this Court is of the opinion that no case has been made out by the
writ petitioners as to how an internal decision of the Government to
utilize the right vested in it by the Cr.P.C, adversely affects the right
of the petitioners and, therefore, all the drafts/notings or file need to
be examined by the Court.
73. Learned counsel for the petitioner, Mr. Vijay Aggarwal during
the course of argument has referred to certain paragraphs/ portion of
the judgment of learned trial court to demonstrate that there was no
substance in the allegations levelled against petitioner and the
investigation was faulty and prosecution was also not able to satisfy
the Court about grievances of the allegations.
74. This Court had asked learned counsel not to touch the merits
of the case even when the arguments were being addressed in
Crl.M.A. 13703/2020 & Crl.M.A. 13851/2020 & Crl.M.A.
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14091/2020. However, despite the said pointing out by the Court,
learned counsel has referred to the merits of the case. This Court is,
however, of the opinion that the issues on merit will be discussed,
analysed and examined during the course of hearing of the criminal
leave petition and therefore, this Court refrains itself from making
any comment at present, as this may prejudice either the case of the
petitioners or the respondents.
75. As discussed hereinabove, the civil writ petitions filed by the
respondents are not maintainable, as the issues raised therein go
beyond the scope of Section 378 (2) Cr.P.C and the Court is not
supposed to go for judicial review of internal notings,
correspondence or files i.e. internal decisions of Central
Government, who has a substantive right to file an appeal. The
petition seeking leave to appeal has been filed by the Special Public
Prosecutor, who is duly authorized to do the same and is being
conducted by learned ASG who is also fully authorized by the
Central Government to do so. The civil writ petitions and pending
applications are, therefore, dismissed.
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76. The Judgment be uploaded on the website of this court
forthwith.
BRIJESH SETHI, J
NOVEMBER 23, 2020
r/ak/ap
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