Holding

The Supreme Court held that the High Court erred by hearing the merits and directing inspection of confidential files contrary to the Supreme Court’s specific direction, and therefore set aside the High Court’s order.

Summary

The Central Bureau of Investigation (CBI) appealed against an interlocutory order of the Delhi High Court that permitted the accused, Ashok Kumar Aggarwal, to inspect confidential files relating to the sanction for his prosecution and the notings of the Finance Minister. The Supreme Court had earlier directed the High Court to first decide the maintainability of the writ petition before entertaining any merits. The High Court, however, proceeded to hear the merits and allowed inspection, contrary to the Supreme Court’s specific direction. The Supreme Court set aside the High Court’s order, directing the High Court to peruse the confidential material and the Finance Minister’s observations and to decide both the maintainability of the writ and the validity of the sanction simultaneously, with no right of inspection to the respondent until such determination. Consequently, both appeals were disposed of.

Issues considered

Whether the High Court, exercising jurisdiction under Section 482 of the CrPC, may entertain the merits of the writ petition and order inspection of confidential sanction files before deciding its maintainability.
Whether the High Court complied with the Supreme Court’s direction to first consider the maintainability of the writ petition.
Whether the respondent is entitled to inspect the confidential documents and the Finance Minister’s notings.
Whether the Supreme Court can set aside an interlocutory order of the High Court that contravenes its earlier direction.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Indian Evidence Act, 1872s. 123, s. 124

Subjects

Section 482 CrPCsanction for prosecutioninterlocutory orderconfidential documentsmaintainability of writhigh court jurisdictioninspection of documentsSupreme Court directionCBIFinance Minister notings

Judgment

) CENTRAL BUREAU OF INVESTIGATION AND ANR. A
v.
ASHOK KUMAR AGGARWAL AND ORS.

MARCH 15, 2007

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] B

Code of Criminal Procedure, 1973:

s.482-Petition before High Court challenging prosecution of
petitioner-Direction by Supreme Court to decide maintainability of C
petition-High Court directing Department of Revenue to allow inspection
of confidential files pertaining to sanction granted for prosecution and
notings of Finance Minister prior to the prosecution leading evidence in
trial court-Held, High Court has failed to comply with specific direction
given by the Court-Impugned order set aside-High Court would take up D
both the issues of maintainability and validity of sanction for prosecution
simultaneous(v and decide the same on merits-Respondent will have no
right to inspection till entire file is perused by High Court and orders issued
thereupon-Interlocutory orders.

In a criminal writ petition, the High Court passed an interlocutory order E
directing inspection of records of the files relating to grant of sanction for
prosecution of respondent no. 1 prior to the prosecution leading evidence in
the trial court. Similarly, the High Court allowed the inspection to be made
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 on behalf of the Central
Bureau of Investigation. Aggrieved, the CBI filed the two appeals. F
It was contended for the appellant that despite the specific directions of
the Supreme Court to hear the matter on maintainability, the High Court
erred in hearing the matter on merits and directing the Department of
Revenue to allow inspection of confidential files pertaining to sanction granted
for prosecution of respondent no. 1. G
f
Disposing of the appeals, the Court

HELD: 1.1 It is not in dispute that challenges to sanction for prosecution
and maintainability of the writ petition are pending consideration before the
1091 H
1092 SUPREME COURT REPORTS [2007] 3 S.C.R.

A High Court. While disposing of Criminal Appeal no. 1308 of2006, 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 the parties
to approach the Division Bench for other reliefs as well and dispose of the
criminal appeal accordingly. The High Court has failed to comply with specific
direction given by this Court. The order of the High Court, which has been
B passed contrary to the direction of this Court, is set aside. [Paras 10 and 11)
[1097-C-E)

1.2. This Court perused the file and in particular, the observations made
by the Hon'ble Minister of Finance. Since the writ petition is pending, the
c High Court would peruse these notings and the observations made by the
Hon'ble Finance Minister and thereafter issue appropriate directions to the
parties. Since the challenge is pending consideration, the High Court would
take 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. The CBI is directed to
D place the notings and the relevant observations made by the Hon'ble Finance
Minister in a sealed cover before the 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.
(Para 121 (1097-F-G; 1098-A-BI
E Additional District Magistrate, Jabalpur v. Shivakant Shukla etc.,
(1976)2 SCC 521' and S.P. Gupta v. Union ofIndia & Anr., [19811 Supp SCC
87 2, cited.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 353 of
2007.
F -~
From the Final Judgment and Order dated 21.02.2007 of the High Court
of Delhi at New Delhi in W.P. (Crl.) No. 1401 of2002.
WITH

G
Criminal Appeal No. 354 of2007.

Gopal Subramanimum, ASG., Dayan Krishnan, Nikhil Nayyar, Gautam
Narayan and Ankit Singhal for the Appellants.
-
,__

I (1976] Supp. SCR 172.

H 2 (1982] 2 SCR 365.
CENTRAL BUREAU OF INVESTIGATION"· ASHOK KUMAR AGGARWAL [LAKSHMANAN. J.] JQ9)
) P.N. Puri for the Respondents. A
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Cr/. A. No. 353of2007@S.L.P.(Crl.)
No. I 307 of 2007.
B
I. Leave granted.

2. 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. (Cr!.) No. 1401 of2002 whereby the High Court directed C
inspection of records of the files relating to the 'grant of sanction for prosecution
of respondent No. I (Ashok Kumar Aggarwal) prior to the prosecution leading
evidence in the trial Court.

Crl.A. No. 354 of 2007 @ S.L.P. (Cr/.) No. I 326 of 2007
D
3. Leave granted.

4. 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 E
fact that the same had been adverted to in the affidavit filed by the appellant.

5. By consent of the parties, both the appeals were taken up for hearing
together.

6. We heard Mr. Gopal Subramaniam, learned Additional Solicitor F
General, appearing for the appellants and Mr. Ram Jethmalani, learned senior
counsel, appearing for respondent No. I.

7. 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 G
by this Court on October 11, 2006 in Criminal Appeal No. 1038 of2006 filed
by the Central Bureau of Investigation against the very same first respondent.
The said order reads thus:

"Leave granted.
H
1094 SUPREME COURT REPORTS [2007] 3 S.C.R.

A Heard Mr. Gopal Subramaniam, learned Additional Solicitor
General for the appellant and Mr. Ram Jethmalani, learned se~ior
counsel appearing for the contesting respondent No. I, Mr. Ashok
Kumar Aggarwal.

The appellants have filed the above appeal against the interlocutory
B 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.

C Rule.

Learned counsel Mr. Dayan Krishnan for respondents I 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.
D
List the petition for hearing on 21st August, 2006.

Sd/-

Manomohan Sarin, Judge
E
J.M. Malik, Judge

April 25, 2006."

The matter was argued herein by both the learned senior counsel
F 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.

G 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
H
CENTRAL BUREAU OF INVESTIGATION"· ASHOK KUMAR AGGARWAL [LAKSHMANAN. J] J095

reliefs as well. A
)
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) B
Sd/-
(Altamas Kabir)

New Delhi,

October 11,2006."
c
8. 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. I in spite of the specific direction of this Court D
to hear the matter on maintainability. He further submitted that the High
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 E
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. F
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. 1.200 I were also perused by the sanctioning authority
before the grant of sanction. It was further submitted that respondent No. I
herein had represented to the Government that relevant documents and more
particularly the reply to the letter Rogatory received from Swiss authorities G
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, H
1096 SUPREME COURT REPORTS (2007] 3 S.C.R.

A 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
B nature.

9. Per contra, Mr. Ram Jethmalani, learned senior counsel, appearing
for respondent No. I submitted that the High Court should first go into the
question of validity of sanction and also submitted that the High Court had
C 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. I herein. The reasons are as
follows:

D I. 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. I 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
E
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 Order XI Rule 15 of the
F 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. I for his inspection. This procedure
is not proper. Reference was made on paragraph 415 of the
G judgment of this Court in Additional District Magistrate,
Jabalpur v. Shivakant Shukla etc., [ 1976] 2 SCC 521. '··
5. There is only one exception to this principle explained hereafter '
- when a party asks for a document in the possess ion of another
party and the latter claims privilege under Sections 123 and 124
H
CENTRAL BUREAU OF INVESTIGATION"· ASHOK KUMAR AGGARWAL [LAKSHMANAN, J.] j 097

of the Evidence Act, for the purpose of deciding whether the A
) 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 B
S.P. Gupta v. 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.

JO. We have carefully considered the rival submissions made by both
the parties. It is not in dispute that challenges to sanction for prosecution and C
maintainability of the writ petition are pending consideration before the High
Court in Writ Petition No. 140 I of 2002. While disposing of Criminal Appeal
No. 1308 of 2006, ~his Court requested the High Court to consider the question
of maintainability ~f 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. D
11. We are sorry to say that in spite of our specific direction, the Higjl
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. E
12. 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 F
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 G

- the High Court, we request the High Court to take 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.

H
1098 SUPREME COURT REPORTS [2007] 3 S.C.R.

A 13. 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.

14. Respondent No.I will have no right of inspection till the entire file
B is perused by the High Court and orders issued thereupon.

15. With the above directions, the appeals stand disposed of.

R.P. Appeals disposed of.

-