Apex court dismisses Sahara-Birla pay-offs allegations against PM, others

Holding that courts should be constantly on guard about ordering investigation against high constitutional functionaries lest there may be an abuse of law and personal liberty, the Supreme Court on Wednesday dismissed a plea for an apex court-monitored Special Investigation Team (SIT) probe into alleged massive pay-offs made by Birla and Sahara companies to influential politicians, including Prime Minister Narendra Modi while he was Chief Minister of Gujarat.

Agreeing with the Centre’s argument that “nobody is safe” if an investigation is ordered on the basis of uncorroborated material, a Bench of Justices Arun Mishra and Amitava Roy invoked the infamous Jain Hawala scandal of the 1990s, which accused high-profile national leaders like LK Advani of receiving bribes.

The Bench held it was “inherently improbable” to order the registration of an FIR against Modi, other national leaders and senior bureaucrats by merely banking on “some diary entries and random loose computer sheets”.

“The anomaly witnessed in the Jain-Hawala case should not take place. The Supreme Court ordered investigation, and on the other side, the lower court discharged the accused,” Justice Mishra observed.

Evidence is key The 1990s case, based on diary entries made by the Jain brothers of bribes paid, collapsed due to insufficient evidence. The CBI’s role was criticised and the Central Vigilance Commission was given supervisory powers over the investigative agency.

“If somebody creates a document that I have paid money to the President, Vice-President, a judge, can an FIR be registered? In that case anybody can be framed. All and sundry can write what they want and get these people charged. That is not the state of law. Independent evidence is required to show that money was paid to X, Y and Z,” Attorney-General Mukul Rohatgi, for the Centre, submitted.

The writ petition filed by Bhushan's client and NGO, Common Cause, had produced “random” Excel sheets, e-mails and other documents allegedly recovered during raids at Aditya Birla and Sahara groups’ offices in 2013 and 2014 as evidence. One of the documents, the petition alleged, contained a cryptic entry - 'Gujarat CM' - believed to be a reference to Modi.

Bhushan, in his turn, referred to the Bofors case. He said how public perception of corruption had virtually ended the political career of the then Prime Minister.

Importance of FIR “There was such a cloud over this man that his political future collapsed. Hence, FIR has to be filed. Investigation should be done credibly for the cloud to go away. Otherwise public perception will not change. Have you not heard: ‘Be you ever so high, the law is above all’. The law is equal for all, even if he is PM or CM. What is this fear that an investigation will make the Prime Minister dysfunctional?” Bhushan argued.

“He (Modi) should say all political leaders are making allegations against me, and ‘I invite an investigation’ to clear once and for all,” senior advocate Shanti Bhushan submitted.

“It is the duty of a police officer to register an FIR and investigate when they come across documents showing prima facie criminality committed by a public servant. That is the clear proposition of law,” Shanti Bhushan added. Prashant Bhushan alleged that a particular diary entry among the Birla papers show a bribe of ₹25 crore allegedly paid to “Gujarat CM”.

When asked by IT officials, the Birla employee in question said ‘Gujarat CM’ meant ‘Gujarat Alkali and Chemicals’. Sahara documents found in the raid showed payments of over ₹40 crore made to “Gujarat CM” and “Modiji” on nine different dates in Ahmedabad, he submitted.

Prashant Bhushan argued that, unlike the Jain-Hawala case, this one was based on documents and large volumes of cash recovered in CBI and Income Tax raids. “Any document recovered in a raid will be presumed true unless otherwise proved,” he contended.

At this point, the court made the civil lawyer read out the names of other leaders named in the entries, including Sushma Swaraj, Mulayam Singh and Mayawati.

“So, no big leader is left out. How can we set the law in motion on such fictitious and false documents? It is very dicey,” Justice Mishra remarked.

“Investigation against any person, howsoever high, can be ordered only on the basis of relevant and admissible evidence, but not loose sheets from a computer. The process of law can be abused very easily, though democracy may survive, if investigations are readily set in motion against constitutional functionaries without any cogent material,” the Supreme Court observed in a detailed order at the end of the day-long hearing.

Ideally, the court said the entries should be part of an “account book” used in the regular course of business to have any probative value.

Commission’s finding In the case of Sahara, the court upheld the November 2016 order of the Income Tax Settlement Commission granting the company immunity against criminal prosecution on the Birla-Sahara papers.

The Bench said the entries found in a diary were “fabricated and non-genuine”.

It referred to the Commission’s finding that the electronic evidence were found to be tampered and held no evidentiary value.

The Commission had given credence to Sahara’s claim that these papers were fudged and fabricated by one of its employees to malign a senior staffer.

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