Herald case: HC sets aside trial court order, Swamy won't get documents

New Delhi: In a major relief to the Congress, Delhi High Court on Tuesday set aside a trial court order summoning documents from Finance and Corporate Affairs Ministries and other agencies and the balance sheet of the Congress party for 2010-2011 in the National Herald case.

Justice P S Teji set aside the trial court's January 11 and March 11 orders saying they were "passed in a casual manner", "without application of mind" and 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 applications (for summoning of documents) were moved in a casual manner and the order 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 opposite side and impugned orders being non-speaking and without due application of mind as per the law laid down by the apex court, culminates into the impugned orders as ineffective, redundant and not sustainable in eye of law and liable to be set aside," the court said.

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."

The high court's order came on the pleas of Congress leaders Motilal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda and a company Young Indian Pvt Ltd (YI) who are accused in the case filed by BJP leader Subramanian Swamy.

The other two accused in National Herald case are Congress President Sonia Gandhi and her son Rahul Gandhi, but they had not moved the high court against summoning of the documents and balance sheet.

The High Court, in its verdict, also said "undisputedly the complainant (Swamy) always has the right to invoke provisions of section 91 of Cr PC and 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 it clear that "right of complainant to move a fresh application shall not be curtailed in any circumstance."

Swamy has accused the Congress leaders, including Sonia and Rahul, 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.

Congress leaders, Vora, Fernandes, Dubey and Sam Pitroda had argued through their lawyers that there were "no reasons or objects" in the application filed by Swamy in which he had sought summoning of these documents.

Their lawyers had contended that there was "no application of mind" by the trial judge while allowing the plea and the high court was entitled to reverse the order.

They had also argued that the orders passed by the trial court were "non-speaking" and, hence, cannot be sustained. "Courts can summon the documents if they are relevant. These documents can be misutilised for other purposes. Do not permit this litigation to be a launch pad for other things," they had said while urging the court to set aside the orders passed by the trial court.

Swamy had earlier argued that the high court should dismiss these pleas seeking stay on two decisions of the trial court, including the one summoning the 2010-11 balance sheet of the Indian National Congress (INC) in connection with the case.