NEW DELHI: The Supreme Court rejected on Wednesday the demand for a probe into bribes allegedly paid to politicians mentioned in the so-called Birla-Sahara diaries, saying it would be dangerous for democracy to order a probe on the basis of loose sheets inadmissible as evidence.
A bench of Justices Arun Kumar Mishra and Amitava Roy concluded that “no case is made out to order an investigation”. The ruling is a setback to opposition leaders, especially Congress vice-president Rahul Gandhi and Delhi chief minister Arvind Kejriwal, and spells relief for PM Narendra Modi and others whose names figured in the purported diaries.
The order came after a marathon four-and-ahalf-hour-long hearing, the bulk of which was taken up by advocate Prashant Bhushan and his father Shanti Bhushan arguing for an SIT probe into the “diaries” on what they called strong ethical and legal grounds as well as to eliminate the risk of subversion of democracy because of rampant corruption.
After giving them a patient and long hearing, Justices Mishra and Roy said: “There has to be some cogent evidence pointing out that the persons, against whom the documents are presented, are involved or have done some act in that period which may have some correlation with the random entries (revealed in the documents).”
The bench added: “Otherwise, the process of law can be abused easily to achieve the ulterior objectives. No democracy can survive in case investigation is readily set out against constitutional functionaries without cogent material.”
“We find the documents seized from Birla and Sahara groups to be random computer entries, diaries, emails and Excel sheets. These are not maintained on a regular basis as books of account,” said the bench, virtually putting a stamp of approval on the Income Tax Settlement Commission’s recent decision, based on a forensic test, to discard the Sahara diary and documents as constituting evidence.
The bench relied heavily on the SC judgment in the V C Shukla case in which it had ruled that diary entries alone cannot be treated as evidence unless corroborated by other independent details. “When we examine this with the findings in the V C Shukla case, we are of the considered opinion that no case is made out against anyone to warrant directing investigation against any person,” it said. “We are of the opinion that in the peculiar facts and circumstances of this case, no case is made out to direct investigation against political personalities, officers and others,” the bench said and dismissed the application filed by Common Cause through Bhushan seeking an independent Supreme Courtmonitored investigation into the Birla-Sahara diaries.
When Prashant Bhushan said that the SC did order registration of FIRs leading to an investigation on the basis of entries in the Jain hawala diary case, the bench said: “It was an intolerable irony. On the one hand, the Supreme Court said investigate and prosecute, one the other hand, it said no evidence, so discharge. What role the Vineet Narain case played at that point of time, it is not for us to judge.”
Attorney general Mukul Rohatgi quickly picked the threads from the bench on the Jain hawala case which saw a number of top-ranking politicians being prosecuted after their names figured in the diary maintained by an alleged hawala operator. Eventually, all the accused were discharged for want of evidence. “A travesty happened in that case. The SC directed registration of case. The Delhi HC quashed the charges and SC upheld the discharge. But many politicians suffered the travesty for years. Let the chapter not be repeated in the Birla-Sahara case,” he said.
The Bhushans argued that as per the Constitution bench judgment of the SC in the Lalita Kumari case, if any document revealed cognizable offence, police had no option but to lodge an FIR.
“In a democracy, the message needs to be sent loud and clear that ‘howsoever high you may be, the law is above you’. If these documents containing detailed evidence revealing systematic bribery of political class, bureaucracy and others did not form the basis for lodging of an FIR, then it would be a very sad moment in the life of a country governed by the rule of law,” the Bhushans said.
During the hearing, when the Bhushans were pressing for the registration of an FIR on the basis of the Birla-Sahara diaries, Rohatgi said: “Every day the I-T department seizes thousands of pages of documents implicating one or the other. If this is taken to be cogent evidence for registration of FIR, every day FIRs will have to be registered starting from the President to a peon.”