Section 91 Cr.P.C.; Motilal Vora Vs. Subramanian Swamy [Delhi High Court, 12-07-2016]

Criminal Procedure Code, 1973 – Section 91 – Summons to produce document or other thing – Scope and applicability of – While passing the order under Section 91 Cr.P.C. for summoning the documents, if the other party has already joined the proceedings, it is entitled to be heard –¬†Undisputedly, the complainant always has a right to invoke the provision of Section 91 Cr.P.C. and the Court is always empowered to pass an order in the facts the circumstances of the case, keeping in view the necessity and desirability of the document in situations and giving due opportunity of hearing to the other party.


IN THE HIGH COURT OF DELHI AT NEW DELHI

CORAM:¬†HON’BLE MR. JUSTICE P.S.TEJI

July 12th, 2016

CRL.M.C. 671/2016

MOTILAL VORA ….. Petitioner Through Mr.R.S.Cheema, Sr. Adv. with Ms.Tarannum Cheema, Ms.Hiral Gupta, Mr.Manvendra Singh and Mr.Harinder Bains, Advs. versus SUBRAMANIAN SWAMY & ANR. ….. Respondent Through Dr.Subramanian Swamy with Ms.Roxna Swamy, Mr.Ishkaran Singh Bhandari & Ms.Sonia V. Madan, Advs. Mr.Rahul Mehra (Standing counsel) with Mr.Amit Chadha, APP, Mr.Amrit Singh, Mr.Shekhar Budakoti & Mr.Jamal Akhtar, Advs. WITH + CRL.M.C. 672/2016 YOUNG INDIAN ….. Petitioner Through Ms.Rebecca John, Sr. Adv. with Ms.Tarannum Cheema, Mr.Harsh Bora, Ms.Nicy Paulson & Ms.Rudrani Tyagi, Advs. versus SUBRAMANIAN SWAMY & ANR ….. Respondent Through Dr.Subramanian Swamy with Ms.Roxna Swamy, Mr.Ishkaran Singh Bhandari & Ms.Sonia V. Madan, Advs. Mr.Rahul Mehra (Standing counsel) with Mr.Amit Chadha, APP, Mr.Amrit Singh, Mr.Shekhar Budakoti & Mr.Jamal Akhtar, Advs. WITH + CRL.M.C. 1317/2016 SAM PITRODA @ SATYANARAYAN GANGARAM PITRODA ….. Petitioner Through Mr.Kapil Sibal, Sr. Adv. with Mr.Devadatt Kamat, Mr.Adit Pujari & Ms.Tarannum Cheema, Advs. versus DR.SURAMANIAN SWAMY & ANR ….. Respondent Through Dr.Subramanian Swamy with Ms.Roxna Swamy, Mr.Ishkaran Singh Bhandari & Ms.Sonia V. Madan, Advs. Mr. Mr.Amit Chadha, APP. WITH CRL.M.C. 1319/2016 SUMAN DUBEY ….. Petitioner Through Ms.Tarannum Cheema & Mr.Shikhar Sareen, Advs. versus DR.SUBRAMANIAN SWAMY & ANR. ….. Respondent Through Dr.Subramanian Swamy with Ms.Roxna Swamy, Mr.Ishkaran Singh Bhandari & Ms.Sonia V. Madan, Advs. Mr. Mr.Amit Chadha, APP. AND + CRL.M.C. 1321/2016 OSCAR FERNANDES ….. Petitioner Through Dr.A.M.Singhvi, Sr. Adv. with Mr.Amit Bhandari, Ms.Tarannum Cheema & Mr.Shikhar Sarin, Advs. versus SUBRAMANIAN SWAMY & ANR & ANR ….. Respondent Through Dr.Subramanian Swamy with Ms.Roxna Swamy, Mr.Ishkaran Singh Bhandari & Ms.Sonia V. Madan, Advs. Mr. Mr.Amit Chadha, APP.

P.S.TEJI, J.

1. As both the impugned orders arise out of the same Criminal Complaint bearing C.C. No.09/1/13 titled as “Subramaniam Swamy v. Sonia Gandhi & others”, so all these petitions are being taken together for decision.

2. The factual matrix is that a complaint for offences under Sections 403, 406 and 420 IPC read with Section 120B of the IPC was filed against the accused persons, namely, Sonia Gandhi @ Edvige Albina Antonia Maino, Rahul Gandhi, Motilal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram Pitroda and Young Indian (hereinafter accused Motilal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram Pitroda and Young Indian shall be referred to as “the petitioners”) by the respondent No.1-Dr.Subramanian Swamy (hereinafter referred to as “complainant”). It was alleged in the complaint that the accused persons committed fraud, cheating and other offences against All India Congress Committee (Congress Party) and The Associated Journals Ltd. (AJL), who are the publishers of National Herald newspaper, which was founded under the Chairmanship of Sh.Jawarharlal Nehru. The AJL was closed and printing of newspapers was terminated with unpaid debt of Rs.90 crores. On 23.11.2010, Young Indian Pvt. Ltd. was incorporated with Rs.5 lakh as paid up capital in which Ms.Sonia Gandhi and Sh.Rahul Gandhi were having 38% shares each. A board resolution of Young Indian Pvt. Ltd. was passed to own the debt of AJL after obtaining interest free loan from the Congress Party. In a board meeting, AJL agreed to transfer its entire share equity to Young Indian Pvt. Ltd. for Rs.50 lakhs. Accused persons were claimed to be the office bearers of the Congress Party. It was further alleged that AJL was having assets worth Rs.2000 crores which became the property of Young Indian Pvt. Ltd. for a mere Rs.50 lakhs and in this way the public money given to the Congress Party which was exempted from Income Tax Act, was used by the accused persons for committing fraud, cheating, misappropriation and criminal breach of trust.

3. The Trial Court summoned the accused persons on 26.06.2014 which was challenged before this Court by way of filing the Crl.M.C. Nos.3332/2014, 3333/2014, 3335/2014, 3336/2014 & 2156/2015 and this Court was pleased to dismiss the same vide order dated 07.12.2015. On the appearance of the accused persons before the Trial Court on 19.12.2015, the process of the trial began. During the pendency of pre-charge evidence, an application under Section 91 of the Cr.P.C. was moved by the complainant which was allowed vide impugned order dated 11.01.2016 by summoning the documents. Similarly, another application under Section 91 of the Cr.P.C. was also moved by the complainant which was allowed vide impugned order dated 11.03.2016 in which the directions were issued to summon the balance sheets of Congress Party and AJL for the year 2010-11.

4. Feeling aggrieved by the impugned order dated 11.01.2016, three petitions bearing Crl.M.C. Nos. 671/2016, 672/2016 and 1317/2016 have been filed by the petitioners, namely, Motilal Vora, Young Indian and Sam Pitroda respectively. Feeling aggrieved by the impugned order dated 11.03.2016, two petitions bearing Crl.M.C. Nos.1319/2016 and 1321/2016 have been filed by the petitioners, namely, Suman Dubey and Oscar Fernandes respectively. Notice of the petitions was issued and the complainant did not prefer to file any reply to the same.

5. Arguments advanced by the learned Senior Counsel for the petitioners and the complainant have been heard at length.

6. Mr.Kapil Sibal, learned Senior Counsel for the petitioner- Sam Pitroda argued that while considering the application under Section 91 Cr.P.C., the Court is required to see the desirability and necessity of the documents to be summoned, but in the present case the Trial Court without ascertaining the necessity of the documents ordered to summon them which is against the settled principles of law. It was further argued that no notice of the application for summoning the documents was given to the petitioner though the petitioner was appearing before the Trial Court. He vehemently argued that the order passed by the Trial Court is without due application of mind and the application has been allowed without giving any notice or opportunity of hearing to the petitioner despite being available in the proceedings. In support of the submissions made, judgments in the cases of