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CASE NO.: Appeal (crl.)  353 of 2007

PETITIONER: Central Bureau of Investigation & Anr

RESPONDENT: Ashok Kumar Aggarwal & Ors

DATE OF JUDGMENT: 15/03/2007

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

(Arising Out of SLP (Crl.) No. 1307 OF 2007) WITH CRIMINAL APPEAL NO.   354          OF 2007 (Arising Out of SLP (Crl.) No. 1326 OF 2007) Union of India                                          ... Appellant(s) Versus Ashok Kumar Aggarwal & Ors.                     ...Respondent(s)

Dr. AR. Lakshmanan, J.

Crl.A. No. 353 of 2007 @ S.L.P.(Crl.)No. 1307 of  2007 Leave granted. The above appeal was filed by the Central Bureau of  Investigation, New Delhi and the Director, C.B.I., New  Delhi against the interlocutory judgment and order dated  21.2.2007 passed by the High Court of Delhi at New  Delhi in W.P. (Crl.) No. 1401 of 2002  whereby the High  Court directed inspection of records of the files relating to  the grant of sanction for prosecution of respondent No.1  (Ashok Kumar Aggarwal) prior to the prosecution leading  evidence in the trial Court.   Crl.A. No. \005\005..of 2007 @ S.L.P.(Crl.)No. 1326 of  2007 Leave granted. This appeal was filed by the Union of India against  the interlocutory judgment and order dated 21.2.2007  passed by the High Court of Delhi at New Delhi in  W.P.(Crl.) No. 1401/2002 whereby the High Court  granted inspection of the notings of the Finance Minister  to the accused owing to the fact that the same had been  adverted to in the affidavit filed by the appellant. By consent of the parties, both the appeals were  taken up for hearing together.  We heard Mr. Gopal Subramaniam, learned  Additional Solicitor General, appearing for the appellants  and Mr. Ram Jethmalani, learned senior counsel,  appearing for respondent No.1.   Mr. Gopal Subramaniam, learned ASG, invited our  attention to the various proceedings and the orders  passed thereon and also the impugned judgment dated  21.2.2007.  He invited our attention to the earlier order  passed by this Court on October 11, 2006 in Criminal  Appeal No. 1038 of 2006 filed by the Central Bureau of  Investigation against the very same first respondent.  The  said order reads thus: "Leave granted.

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Heard Mr. Gopal Subramaniam, learned  Additional Solicitor General for the appellant and Mr.  Ram Jethmalani, learned senior counsel appearing for  the contesting respondent No.1, Mr. Ashok Kumar  Aggarwal.

The appellants have filed the above appeal  against the interlocutory order dated 25.4.2006 passed  by the High Court of Delhi in Crl.Misc. No. 1653 of  2006 in W.P.(Crl.) No. 1401 of 2002.  The impugned  order reads thus: "W.P.(Crl.)No. 1401/2002.

Rule. Learned counsel Mr. Dayan Krishnan for  respondents 1 and 2 submits that the admission of  petition should not come in his way to object to the  maintainability of the petition.

Mr. Jethmalani has no objection to that.

List the petition for hearing on 21st August,  2006.

Sd/- Manomohan Sarin, Judge J.M. Malik, Judge April 25, 2006."

The matter was argued herein by both the  learned senior counsel for some time.  Later, both the  learned senior counsel agreed that the High Court  itself may be requested to dispose of the preliminary  issued in regard to the maintainability of the writ  petition as expeditiously as possible since the matter is  pending before one forum or the other for a long time. It is represented that Writ Petition (Crl.) No.  1401/2002 is listed for hearing before the High Court  on 30.10.2006.  We, therefore, request the Hon’ble  Acting Chief Justice of the High Court to place this  matter before a Division Bench to consider the  question of maintainability of the writ petition on the  same date itself.  Liberty is reserved to both parties to  approach the Division Bench for other reliefs as well.   The Criminal Appeal stands disposed of  accordingly.  The Registry is directed to send a copy of  this order to the Registrar General of the High Court of  Delhi today itself.

                                      Sd/-                                       (Dr. AR. Lakshmanan)

                                      Sd/-                                       (Altamas Kabir) New Delhi, October 11,2006."

The grievance of learned Additional Solicitor General  is that the High Court heard the matter on merits and  directed the Department of Revenue to give inspection of  confidential files pertaining to sanction granted for  prosecution of respondent No.1 in spite of the specific  direction of this Court to hear the matter on  maintainability.  He further submitted that the High

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Court erred in not appreciating that while exercising  jurisdiction under Section 482 Cr.P.C. the High Court  would not ordinarily embark upon an enquiry whether  the evidence in question is reliable or not or whether on a  reasonable appreciation of it the accusation would be  sustained as this is the function of the trial Court.  It was  further submitted that the appellant perused all the  relevant documents and applied its mind in accordance  with law while granting sanction dated 21.6.2002 and  that the said fact is mentioned on the face of the order of  sanction and the application of mind was with reference  to the documents mentioned at S.Nos. 1-42 along with  the report of the Superintendent of Police forwarded by  the Central Bureau of Investigation.  It was also argued  that the documents received from the Federal  Department of Justice and Appeals (Switzerland) dated  11.7.2001 along with the letter Rogatory dated 29.1.2001  were also perused by the sanctioning authority before the  grant of sanction.  It was further submitted that  respondent No.1 herein had represented to the  Government that relevant documents and more  particularly the reply to the letter Rogatory received from  Swiss authorities had not been perused by the  sanctioning authority and that the said representations  were considered at the highest level that is, at the level of  the Hon’ble Minister of Finance on 18.6.2005,  27.12.2005 and more recently on 15.1.2007 and after  detailed consideration of the case, the Hon’ble Minister of  Finance has come to the prima facie conclusion that all  relevant documents, including the reply to the letter  Rogatory were perused by the sanctioning authority  before granting sanction on 21.6.2002.  It was further  submitted that the plea raised by the respondent/writ  petitioner that the sanctioning authority had not applied  its mind to all the documents and the reply to the letter  Rogatory had not been shown to the sanctioning  authority cannot be countenanced.  It was also  submitted that the documents are confidential in nature. Per contra, Mr. Ram Jethmalani, learned senior  counsel, appearing for respondent No.1 submitted that  the High Court should first go into the question of  validity of sanction and also submitted that the High  Court had rightly permitted the respondent herein to  inspect all the three notings and, therefore, the direction  issued by the High Court is not liable to be interfered  with.  He further submitted the reasons as to why the  inspection of these documents must be given to  respondent No.1 herein.  The reasons are as follows: 1.      Having been disclosed and relied upon in  paragraph 5 of the Affidavit dated 12th  February, 2007, they have become a part  of the affidavit on the principle of  incorporation.  Respondent No. 1 is  entitled to inspect them and have the  copies thereof and the Court has no  discretion in the matter. 2.      In the said paragraph of the affidavit, the  respondent has purported to give a  description of the contents of these  documents.  The description is secondary  evidence of the contents of the  documents.  The primary evidence is  documents themselves.  They cannot be  withheld from inspection. 3.      This is an accord with the principle of

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Order XI Rule 15 of the Code of Civil  Procedure. 4.      The appellants have now offered to show  these documents to this Court and  requested this Court to decide whether  they should be given to respondent No.1  for his inspection.  This procedure is not  proper.  Reference was made on  paragraph 415 of the judgment of this  Court in Additional District Magistrate,  Jabalpur vs. Shivakant Shukla etc.   (1976) 2 SCC 521. 5.      There is only one exception to this  principle explained hereafter \026 when a  party asks for a document in the  possession of another party and the latter  claims privilege  under Sections 123 and  124 of the Evidence Act, for the purpose  of deciding whether the privilege should  be allowed, the Court can inspect the  documents and come to its own  conclusion.  Whether the document  relates to affairs of the State or whether  public interest would suffer by the  disclosure are the issues which the Court  decides on inspection.  Reference was  made to judgment of this Court in S.P.  Gupta vs. Union of India & anr. 1981  (Supp) SCC 87 at pages 272 to 303.  No  party can claim privilege for documents  which it has voluntarily disclosed. We have carefully considered the rival submissions  made by both the parties.  It is not in dispute that  challenges to sanction for prosecution and  maintainability of the writ petition are pending  consideration before the High Court in Writ Petition No.  1401 of 2002.  While disposing of  Criminal Appeal No.  1308 of 2006, this Court requested the High Court to  consider the question of maintainability of the writ  petition on the same date itself  and also reserved liberty  to both parties to approach the Division Bench for other  reliefs as well and dispose of the criminal appeal  accordingly. We are sorry to say that in spite of our specific  direction, the High Court has failed to comply with our  specific direction.  We, therefore, have no hesitation to  set aside the order which has been passed contrary to  the direction of this Court.    Accordingly, the order of the  High Court dated 21.2.2007 in W.P.(Crl.)No. 1401 of  2002 is set aside. When the matter was heard on 12.3.2007, we  requested the learned Additional Solicitor General to  place before us the notings made on the file on  18.6.2005, 27.12.2005 and  15.1.2007  for our perusal  and for issuing further directions.  Accordingly, the  relevant file was placed before us.  We perused the file  and in particular, the observations made on 18.6.2005  (page 55 of the file), 27.12.2005 (page 57 of the file) and  15.1.2007 (page 59-64 of the file) by the Hon’ble Minister  of Finance.  Since the writ petition is pending, we request  the High Court to peruse these notings and the  observations made by the Hon’ble Finance Minister and  thereafter issue appropriate directions to the parties to  the action.  Since the challenge is pending consideration  before the High Court, we request the High Court to take

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up both the issues of maintainability and the validity of  sanction for prosecution simultaneously and decide the  same on merits and in accordance with law and after  affording opportunity to the parties to the action. Today, we return the file to Mr. Gopal Subramaniam  after perusal.  We direct the CBI to place the notings and  observations made by the Hon’ble Finance Minister made  on these dates referred to above in a sealed cover before  the learned Judges of the High Court who hear the writ  petition. Respondent No.1 will have no right of inspection till  the entire file is perused by the High Court and orders  issued thereupon. With the above directions, the appeals stand  disposed of.