Herald case: HC sets aside summoning of documents

The Delhi High Court today set aside the trial court orders summoning documents and the balance sheet of the Congress party for 2010-2011 in connection with the National Herald case holding that they were passed hearing the opposite side.
Ruling on an appeal filed by Congress leaders and the company Young India Ltd, Justice P S Teji observed that the lower court orders violated the "principle of natural justice" and the right to life and liberty under the Constitution.
In a 25-page verdict, it said that the orders of January 11 and March 11 seeking documents from the Ministries of Finance and Urban Development, Department of Corporate Affairs and the Income Tax Department and the summoning of certain documents pertaining to financial details of the party for 2010-2011 in the case were "passed in a casual manner", "without application of mind".

They were "non-speaking" which makes the two decisions "ineffective, redundant and not sustainable in the eye of law and liable to be set aside," the high court said.
"The facts narrated on record do not demonstrate the exercise of discretion under Section 91 of the CrPC in any other circumstance except to facilitate the evidence of the complainant.
"No question arises to look into the present case of exercising the power under Section 91 of the CrPC to summon the document except to render assistance and to facilitate the complainant evidence against petitioners (Congress leaders)," the judge said.

"In such a scenario, the plea of complainant (Subramanian Swamy) appreciating orders passed by the trial court without giving any notice or opportunity of hearing to the opposite side that too in a criminal case, would tantamount not only to the violation of principle of natural justice but also to the violation of Article 21 (right to life and personal liberty) of the Constitution of India," the court observed.

Swamy has accused them of allegedly conspiring to cheat
and misappropriate funds by just paying Rs 50 lakh by which YI obtained the right to recover Rs 90.25 crore which Associated Journals Pvt Ltd (AJL) owed to the Congress party.
All the accused have denied the allegations levelled against them by Swamy.
The high court's order came on pleas of Vora, Fernandes, Dubey, Pitroda and a company YI. Gandhi's had not moved high court against summoning of the documents and balance sheet.
Allowing the appeal, the high court said "applications were moved (by Swamy) before the trial court in a casual manner and orders passed on the same were also passed in a casual manner without due application of mind".

"The facts and circumstances mentioned above, non- issuance of notice to the opposite side and orders being non- speaking and without due application of mind as per the law laid down the apex court, culminates into the impugned orders as ineffective, redundant and not sustainable in the eye of law and liable to be set aside," it added.
It further said, "In view of the above discussion and law laid down, as referred above, this court is of the considered opinion that while the passing order under section 91 of CrPC for summoning the documents, if the other party has already joined the proceedings, it is entitled to be heard.

"Consequently, the orders dated January 11, 2016, and March 11, 2016, are hereby set aside along with proceedings consequent thereto."
In its order, the High Court said "undisputedly the complainant (Swamy) always has the right to invoke the provisions of section 91 of CrPC and the court is always empowered to pass an order in the facts and circumstances of the case, keeping in view the necessity and desirability of document in situations as discussed above and by granting an opportunity of hearing to the other party".
It also made clear that the "right of complainant (Swamy) to move a fresh application shall not be curtailed in any circumstance to move the fresh application during the pendency of the proceedings before the court below".