Questioning the National Herald Case Judgment

Ningombam Bupenda Meitei *

At the outset, this writer honours but respectfully argues to question and challenge the judgment of Delhi High Court on Rahul Gandhi vs Dr. Subramanian Swamy & Anr. on 7 December, 2015.

It is to be noted that the investigation, which was closed by the ED (Enforcement Directorate) in August, against Sonia Gandhi and Rahul Gandhi in the National Herald case was re-opened by the same ED in September of 2015. The question is – Why could not the ED maintain consistency in its decision, whether to close or re-open the case?

From the 27 pages' judgment, the following points and corresponding arguments against the points are detailed below.

(i) On public spirit against not one's own political party

In para 1 of the judgment, it says, "The complainant claims to be a public spirited person, who wishes to expose cheating, criminal breach of trust and criminal misappropriation in high places with a view to protect general public interest."

The argument is, Can the complainant, who is the respondent-complainant Dr. Subramanian Swamy, maintain and will claim himself to be the same public spirited person, which he indeed claimed in the (1) of the judgment, to expose cheating, criminal breach of trust and criminal misappropriation in high places in his own party ruled states and regimes with a view to protect general public interest?

(ii) On whether a criminal intent is same as a criminal act or not

According to para 2 of the judgment, on a criminal complaint filed by Dr. Subramanian Swamy alleging cheating, etc., trial court after recording pre-summoning evidence of the complainant, vide impugned order of 26th June, 2014 has summoned petitioners (Sonia Gandhi, Rahul Gandhi & others) as accused for the offences under Sections 403, 406 and 420 read with Section 120-B of IPC.

According to para 39 of the judgment, this Court (the Delhi High Court) finds that the modus operandi adopted by the petitioners in taking control of AJL (Associated Journals Private Limited) via YI (Young India), particularly, when the main persons in Congress Party, AJL and YI 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. 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.

The argument is, Dr. Subramanian Swamy filed a criminal complaint alleging cheating, etc. (such as criminal misappropriation, criminal breach of trust), but in the finding of the Delhi High Court, NOT a criminal act but only a criminal 'intent' is evidenced. To the criminal complaint alleging the criminal act of cheating, the Court finds NOT the criminal action but the 'intent'. The question is, What is this 'intent' that has led to be the major premise on which a questionable 'conduct' is to be examined? How has the 'intent' become a cause and antecedent to the assumed effect of the probable, or not, corresponding consequent 'the questionable conduct'? Without proving that the intent-conduct relation as the one, unidirectional, unique and only possible cause-effect in this case, how has that criminal intent become a cause to allow to posit the questionable conduct of petitioners? Is 'the act of cheating' the same as 'the intent to perform the act of cheating' or vice-versa? Does every intent of doing an act always, without fail, lead to the performance of that act into doable action, and if not, then can every intent of doing an act guarantee, or lead to, or be held responsible for surely and successfully performing that act, as a result of the intent? What guarantees the criminal intent always and sufficiently to produce the corresponding criminal act, and if such guarantee cannot be established, then where from the question of 'the questionable conduct of petitioners' arises?

Also to the criminal complaint alleging cheating has been filed, the Delhi High Court finds NOT the act of cheating but instead the non-requirement of spelling out the cheating in the judgment at that stage of the pronouncement of the judgment. Is not this 'non-requirement' to spell out cheating weakening the degree of seriousness of the allegation of cheating at the nascent stage itself? Or, is the 'non-requirement' required only to justify the requirement not to thwart the legal proceeding at the initial stage so that the finding of whether cheating or criminal misappropriation or criminal breach of trust can be found later, and if so, then why should not one wonder if what was not seriously required to be spelled out at the initial stage is bound to become to be seriously required to be distinctly spelled out at the final stage, if the one believes that a cause, the antecedent, leads to an effect, the consequent, but not the effect produces the cause that causes to produce the very same effect?

(iii) On the relationships of a political party with its supporters/donors and third party

According to para 4 of the judgment, the Congress Party owes an explanation to its supporters, donors, etc.

According to para 14, the donations received by the Congress Party could have been dealt with in the manner it liked.

According to para 28, how a Political Party of national stature acts is everybody's concern.

According to para 18, on the issue of locus standi, it was submitted that in a case of cheating and misappropriation, victim or the person or entity cheated, who complains of wrongful loss, alone can maintain a complaint of cheating, misappropriation, etc.. Reliance was placed upon Apex Court's decision in Mohammed Ibrahim & Ors. V. State of Bihar & Anr. (2009) 8 SCC 751 to submit that a third party, who does not claim to be cheated, cannot maintain such a complaint. It was asserted on behalf of petitioners that neither the shareholders of AJL nor any supporter/donor of Congress Party or anyone from YI has made any complaint and in fact, only such persons are competent to file the complaint in question and not the respondent-complaint, who has malafidely filed the instant complaint.

According to para 29, the Apex Court in Subramanian Swamy v. Manmohan Singh (supra) has reiterated that freedom of a private citizen to proceed against the corrupt cannot be restricted.

According to para 30, upon scrutiny of the impugned order, this Court (the Delhi High Court) is constrained to note that the presumptive observations made by the trial court are uncalled for.

According to para 9, trial court has concluded as under:- "However, as the complainant has established a prima facie case against the accused u/s 403, 406 and 420 read with section 120B I.P.C. hence, let the accused No. 1 to 6 namely Mrs. Sonia Gandhi, Mr. Rahul Gandhi, Sh. Moti Lal Vohra, Sh. Oscar Fernandes, Sh. Suman Dubey and Mr. Sam Pitroda be summoned…"

The argument is on the fundamental question of whether the courtroom shall decide the nature of the relationships of a political party with its supporters/donors or shall such relationship be as per the rules framed by the political party's constitution. Whether a political party owes an explanation to its supporters/donors or what explanation it owes to them, is to be best left to the party itself and not to a person who is not even a registered member of the party. What would happen to political parties in a democracy if their own financial relationship, such as donations and the ways to utilise the donations, is to be dealt with in the manner the parties do not like but instead in that manner which is liked by a person who is not a registered member of the party? Even if a Political Party of national stature acts is everybody's concern, will or can anybody from the set of everybody file a legal complaint complaining any wrongdoing in the party in which that 'anybody' is not even a registered member of the party, and if that is so, then how will democracy be if a member of a treasury bench files a complaint, alleging a wrongdoing, for the intra-party wrongdoing of the opposition party or if a member of the opposition party files another such complaint, alleging a wrongdoing, against the internal wrongdoing of the party in treasury bench? If one argues that the freedom of a private citizen to proceed against the corrupt cannot be restricted, and therefore, the third party, who does not even claim to be cheated, can still complain on cheating, the question is not whether the private citizen, even if he or she is a third party, can complain or not, but whether that private citizen, who can be a third party too, has sufficiently proved 'the corrupt' to be corrupt and not merely stating the allegation of 'the corrupt' much before the private citizen begins exercising to proceed against the corrupt. As 'the corrupt' and 'the allegation of the corrupt' are two different entities, therefore, without justifying the existence or commission of 'the corrupt', how can any third party private citizen go ahead to proceed against the corrupt by merely quoting 'the freedom of a private citizen to proceed against the corrupt cannot be restricted'. Though, the trial court has concluded that the complainant has established a prima facie case against the accused u/s 403, 406 and 420 read with section 120B I.P.C, the Delhi High Court uses the adjective 'presumptive', to qualify the observations, in order to note that the presumptive observations made by the trial court are uncalled for.

(iv) On ownership/management/control of AJL

According to para 15, it was pointed out that neither the Representation of the Peoples Act nor the Income Tax Act or any other Act prohibits giving of loans by Political Party. To assert that a shareholder is not the owner of the assets belonging to the Company, reliance was placed upon Apex Court's decision in Bacha F. Guzdar, Bombay v. Commissioner of Income Tax, Bombay (1955) 1 SCR 876.

According to para 21, (i) No conversion, appropriation by YI for benefit is possible. (ii) YI is Section 25 Company-barred in law from giving any benefit, salary, remuneration, dividend etc. to its shareholders. (iv) Ownership of shares in company is not ownership of properties of company.

The words 'Management' and 'Control' are used in para 24 as '…the Management of AJL…' and '…the control of AJL…' respectively.

The argument is that the perception of management or control appears to be same as ownership while the three words – ownership, management and control – are three distinct entities with regard to the functioning or existence of any company. YI, being Section 25 Company, does not give any benefit, salary, remuneration, dividend, etc. to its shareholders and its shareholders include the petitioners (Mrs. Sonia Gandhi, Sh. Rahul Gandhi and others), and therefore the petitioners do not or have not obtained any benefit from YI. The petitioners too are also shareholders with some shares in the company, but they do not own the company as having shares in a company does not amount to becoming the owner of the company. Therefore, the petitioners, though are shareholders, but are not the owner of the company YI.

Conclusion

In para 36, it states , "It needs no reiteration that this is not the stage to even prima facie opine that the ingredients of any of the alleged offences exist to justify putting petitioners on trial or not. Any observation made in this regard by the trial court or this Court shall have no bearing when the case of petitioners is considered at the charge stage."

The point is to understand the background of the politically charged environment under the present Narendra Modi's prime ministership in uprooting the Indian National Congress Party and destroying the legacy of Jawaharlal Nehru, and therefore, to dispassionately and arguably discuss whether Modi will be indeed satisfied if Sonia Gandhi and Rahul Gandhi go to the court and divert the nation's problems into dark by blaming the Nehru-Gandhi family. The more the court summons the Gandhis, the more support the Congress party will be blessed with from the entire people of India.

To any legal battle, the battle has to be fought legally. The former Prime Minister Indira Gandhi's arrival to a lower court in Imphal of Manipur is a sign of the honour that the Nehru-Gandhi family has for the rule of law.