In a boost to Prime Minister Narendra Modi, the Supreme Court on Wednesday rejected a plea to probe the alleged payoffs by the Birla-Sahara groups to him when he was the Gujarat Chief Minister.
Besides Prime Minister Modi, the documents relied upon by the petitioner NGO Common Cause has named a large number of politicians including External Affairs Minister Sushma Swaraj, Union Law Minister Ravi Shankar Prasad, Chief Minister of Madhya Pradesh, Chhattisgarh, Bihar, Delhi (former), Congress leaders Digvijaya Singh, Salman Khursheed, RJD chief Lalu Prasad Yadav and others.
Rejecting the plea by Common Cause, the bench of Justice Arun Mishra and Justice Amitava Roy said that evidence produced for seeking the registration of FIR against the Prime Minister and other political functionaries including government officials was not admissible.
If we were to order investigation on the basis of material with no evidentiary value, the court said that it would be difficult for constitutional functionaries to function and it would not be safe for the democracy.
"The shape in which these documents have been collected and filed, we are of the opinion that it would not be safe and proper to order investigation," the court said in its order while weighing the evidence placed before it in the context of earlier judgments of the top court, including that of the constitution bench.
The question debated before the court, in the daylong hearing, was whether it was incumbent upon the police to register an FIR on the basis of material that prima facie point to a cognizable offence or it was open to police to undertake the veracity of the documents pointing to a wrongdoing.
Both Congress leader Rahul Gandhi and Delhi Chief Minister Arvind Kejriwal had flashed what they said were Income Tax department documents to claim that Modi got huge sums of money as bribes when he presided over Gujarat.
Opposing the plea by the NGO Common Cause for court monitored SIT probe, Attorney General Mukul Rohatgi said that evidence placed before the court was palpably "false and reckless".
"Is a police officer obliged to register an FIR in a case on the basis of documents, when in a similar document (Jain Hawala diary entries on payoffs to politicians) the Supreme Court found them not admissible (as evidence) in that case but people named in them suffered for so many years."
The top politicians cutting across the political parties including Lal Krishna Advani, late Madhya Pradesh Chief Minister V.C. Shukla, Janata Dal (United) leader Sharad Yadav and others were named in the Jain Hawala Diaries as recipients of money.
Rohatgi said that what was being relied upon was computer excel sheets and the Central Forensic Science Laboratory (CFSL) has found it to be tampered with.
Referring to the entries in the computer print out, Attorney General said, "An employee can say anything in his personal computer, but it can't be attributed to me for assessment of taxes."
Rubbishing the evidence being relied upon by Common Cause, Attorney General said, "Anybody can say anything about anybody" pointing out that similar allegations could be levelled against the President of the country, the Vice-President, the Prime Minister, Judges, politicians and professors.
As the AG tried to impress upon the court that the material brought before it was of no consequence and referred to Income Tax Settlement Commission November 11, 2016, order settling the matter in respect of Sahara, the bench observed, "It is a very dicey issue. Even judges are not immune."
"We are not doubting the decision of the settlement Commission as on today. We are not on the legality of the order (by the Income Tax Settlement Commission). We are on the integrity of these documents (being relied upon by the petitioner Common Cause)" in support of its plea for registration of FIR and investigation.
Arguing in support of the plea for the registration of the FIR, counsel Prashant Bhushan contended that Birla executives have admitted to receiving payments from Hawala operators which in turn were disbursed to the politicians and officials on the basis of the instructions by the group president.
He referred to the emails by the Aditya Birla group executives pointing to managing the officials of the DRI in narrowing down the scope of the probe. Rs. 25 crore were found from the office of Birla Group.
Bhushan said that Aditya Birla group executives have admitted to Income Tax authorities that payments were made to Ministry of Environment and Forest and Ministry of Coal.
When confronted with the entry 'CM', the Income Tax officials were told by Birla executives that it was not the Chief Minister but Gujarat Alkalies and Chemicals, Bhushan told the court pointing out investigation was not taken to its logical conclusion as claim by the Birla executives could have been crossed checked with accounts of Gujarat Alkalies and Chemicals.
The court was told that the Income Tax Department has described the explanations offered by Birla executives as "cock and bull" stories.
Bhushan told the court that in case of Sahara documents the amount, place, person who delivered and person who was given the money has been mentioned and there are nine entries showing the payments made to Gujarat CM.
He said all that was needed was to investigate the people who were named having delivered the amount.
The documents under reference were those recovered by the CBI in its raids on Birla group offices on October 15, 2013 and on November 27, 2014 raids took place at Sahara group offices.
Bhushan told the court that CBI instead of registering the case sent the entire material to the Income Tax Department.