Trial in original National Herald case stuck for 4 years

A special court under the Prevention of Money Laundering Act last week summoned the file on the original complaint in the National Herald newspaper case, based on which the Enforcement Directorate launched a probe against senior Congress leaders including Sonia Gandhi and her son Rahul.

Politician Subramanian Swamy had filed the original case, a private complaint against the Gandhis and others accusing them of cheating, criminal conspiracy and usurping properties worth hundreds of crores owned by the Congress party-linked newspaper. A trial court in June 2014 held that prima facie offences of cheating and criminal conspiracy were made out and summoned the accused including the Gandhis.

The ED, which initiated a money-laundering case based on this predicate offence, earlier this month filed a prosecution complaint (equivalent to a charge sheet) in the special court in the capital against the Gandhis and five others under the PMLA. According to the ED, the assets of National Herald publisher Associated Journals Ltd were illegally transferred to a shell company, Young Indian, controlled by Rahul and Sonia Gandhi.

The trial of the predicate offence has been pending in the trial court for four years. Between March 16, 2021 and March 1 this year, the case was adjourned 18 times without any progress.

This after the Delhi HC on February 22, 2021 stayed "the proceedings before the trial court against" Swamy on his appeal against a trial court ruling that turned down his application seeking to summon certain witnesses.

The trial court in its order on February 11, 2021 noted that Swamy filed the application when the matter was at the stage of cross-examination of the complainant. It said the application "shall be considered, after the evidence of the complainant (Swamy) is over".

At the HC, Swamy argued that the trial court order was "unsustainable in law" and liable to be set aside. In his appeal, seen by ET, Swamy said the magistrate "failed to appreciate that under Section 244 CrPC the petitioner is entitled to apply to the magistrate to summon witnesses at any stage to produce" documents in support of the complaint.

According to the appeal "at a late stage (after the cross-examination is closed) it may prejudice the accused because the accused may want to question the Petitioner and the instant application made bona fide will save the valuable time of the trial court".

"The fact that what is required to be produced is a document already produced in higher courts and which is also a subsequent event and the fact that the petitioner himself is under cross-examination makes no difference," Swamy's appeal read. He sought summoning of a few witnesses.

While passing the February 2021 order, the magistrate had placed reliance extensively on a judgement passed by his predecessor on May 26, 2018 which had expressed concern over the delay being caused in the trial.

The magistrate in his 2018 order said "in warrant trial cases instituted on a private complaint, the complainant has to start his evidence first under section 244 Cr.PC and thereafter the issue of framing of charge comes".

The magistrate held that "once the accused are summoned, the case has now reached at the stage of pre-charge evidence". According to that order, "the way the complainant is moving the applications u/s 91 Cr.PC or for placing on record documents is not serving any purpose but is in fact delaying the trial. The reason is that, in a criminal trial, once the stage of evidence has come, there is nothing like production of documents or placing of documents on records simpliciter but the placing of documents on record has to be contemporaneous with the examination of the witnesses to prove them legally".

The 2018 order said the trial was already delayed, noting that the first date for leading prosecution evidence was February 20, 2016 "and till now the evidence has not been started". So, the trial has to be put back on the right track, the order said, and directed the complainant first examine himself as the first witness of the prosecution and lay the foundation of his case. "Thereafter, the witnesses, official or otherwise to prove the documents by which the complainant further wants to prove his case shall be summoned," it said.