SC declines to stay Herald case, but expunges HC observations

| Friday, February 12, 2016 - 22:12
First Published |
The Supreme Court of India
New Delhi: The Supreme Court on Friday refused to put on hold criminal proceedings against Congress president Sonia Gandhi, vice president Rahul Gandhi and others in the National Herald case but expunged all adverse observations, inferences and conclusions by the high court.
A bench of Justice Jagdish Singh Khehar and Justice C. Nagappan also exempted the Gandhis and others from personal appearances, noting that their presence in the trial court would cause more "inconvenience, than convenience".
However, it said the trial court was free to have their presence as and when needed. 
"When people of such prominence are there, they are not going to run away. If on a particular occasion when you need them, you can call for them. There will be more chaos with these people going to the court than not going to the court," the court told BJP leader Subramanian Swamy, the complainant, as he said that power to grant exemption was vested in the magistrate.
As Swamy tried to read an earlier apex court ruling in support, Justice Khehar said that one option was that they ask the Gandhis and others to make an application for exemption from personal appearances and direct the magistrate to grant it or do it themselves.
In yet another relief to the Gandhis, the court permitted them to raise all the issues, including the locus of Swamy, who has initiated the criminal proceedings.
"Whatever you want to say, you say at the time of the framing of the charges," the court said as senior counsel Kapil Sibal sought to assail maintainability of Swamy's complaint and his locus.
Making it clear that they were not going to reverse the high court order, Justice Khehar said that their interference would be limited to the adverse inferences and conclusions by the high court.
"We are not happy with what the high court judge has said. That is the limited interference (of expunging them) we can do.
"So far as determination rendered by the high court in rejecting the prayer for quashing of the proceedings against the petitioners are concerned, we find no justification in intervening with the order.
"On factual position in paragraph 31 and conclusion in paragraph 39 of the high court judgment, we are of the view that it will not be open (for trial) court recording any findings based on conclusions and same has to be decided after recording of the evidence. so paragraph 31 and paragraph 39 are expunged," the court said.
The high court in paragraph 31, while holding that a political party was free to tap other avenues to augment its income, however said that the allegations against the Congress office bearers are that of "siphoning off the party funds in a clandestine manner".
Questing the propriety of the party "extending interest free loans to a separate legal entity i.e. AJL", it had said that "what crops up in the mind of a prudent person is as to where was the need of extending interest free loans to a public limited company engaged in a commercial venture of publishing newspapers".
In paragraph 39, it had said: "After having considered the entire case in its proper perspective, this court finds no hesitation to put it on record that the modus operandi adopted by petitioners in taking control of AJL via special purpose vehicle i.e. Y.I., particularly, when the main persons in Congress party, AJL and Y.I. are the same, evidences a criminal intent."
"Whether it is cheating, criminal misappropriation or criminal breach of trust is not required to be spelt out at this nascent stage," it said.
Directing Gandhis and others to appear before the trial court, the high court had said it could not be argued that no case for their summoning has been made out, and the "questionable conduct of petitioners needs to be properly examined at the charge stage to find out the truth and so, these criminal proceedings cannot be thwarted at this initial stage".
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