Central Bureau Of Investigation vs A.Raja & Ors

Brijesh Sethi, J

Crl.M.A. 13703/2020 (by R-13); Crl.M.A. 13851/2020 (by R-2) & Crl.M.A. 14091/2020 (supplementary application by R-13)

Vide this common order, this Court will dispose of the above captioned three applications. Vide first application [Crl.M.A. 13703/2020],

applicant/respondent No.13- Asif Yusuf Balwa is seeking necessary direction to the petitioner to furnish copy of mandatory approval under Section

378(2) Cr.P.C. obtained by the petitioner i.e. CBI along with concerned note sheets, reports, drafts, letters and correspondence to file the present

appeal. Vide second application [Crl.M.A. 13851/2020], applicant/ respondent No.2-Siddharth Behura is also seeking copy of mandatory approval with

complete file maintained by the Government containing all note sheets, reports, drafts, letters, correspondence etc. under Section 378(2) Cr.P.C.

Applicant/respondent No.2 is seeking copy of approval/ notification under Section 24(8) Cr.P.C. in favour of Mr.Sanjeev Bhandari, Special Public

Prosecutor authorizing him to file the instant petition. The prayer made by the respondents runs as follows:-

Crl.M.A. 13703/2020 & Crl.M.A14091/2020

PRAYER

“It is, therefore, prayed that this Hon’ble

Court be pleased to:

(a) Pass necessary orders and directions to Appellant to place on record all the documents through official mode with affidavit, which have

been shared by the Appellant with the respondents over email.

(b) Pass necessary orders and directions to Appellant to place on record all the Truncated documents along with its enclosures therein, so

that proper sense can be out of the documents.

(c) Pass any other order(s) and direction(s) in view of the facts and circumstances of the case, in the interest of justice.

Crl.M.A. 13851/2020

PRAYER

It is, therefore, prayed that this Hon’ble Court be pleased to:

(a) Pass necessary orders and directions, to the Appellant for supply of copy of mandatory approval alongwith the complete file maintained

by the concerned government department containing all the note sheets, reports, drafts, letters and correspondences etc., if any, obtained

by the Appellant under Section 378 (2) of Code of Criminal procedure, 1973 to file the captioned Appeal.

(b) Pass necessary orders and directions, to the Appellant for supply of copy of the approval/notification under Section 24 (8) Cr.P.C of Sh.

Sanjeev Bhandari, Spl Public Prosecutor who has filed captioned Appeal alongwith the Criminal leave application;

(c) Pass any other order(s) and direction(s) in view of the facts and circumstances of the case, in the interest of justice.â€​

Learned counsel for the applicant/respondent No.13 submitted that the allegations levelled against the present applicant with other accused was of

intentionally aiding and facilitating the payment of alleged quid pro-quo of Rs.200 crores as a reward for alleged undue favours shown to company M/s

Swan Telecom Private Limited. Learned Special Court vide order dated 21st December, 2017 had acquitted all the accused persons including the

present applicant. Thereafter, the petitioner/CBI has filed the instant leave to appeal against the said order of acquittal passed by the learned Special

Court on 21st December, 2017. Learned counsel for applicant/respondent No.13 has, however, submitted that this Court cannot hear and decide the

petition seeking ‘leave to appeal’ unless petitioner/CBI places the mandatory approval u/S 378(2) Cr.P.C. on record.

Learned counsel for the applicant/respondent No.13 had drawn attention of this Court to Section 378 of Cr.P.C. Mr. Vijay Aggarwal, learned

counsel submitted that in terms of sub section 2(b) of Section 378 Cr.P.C. and Chapter 23 of CBI Manual, it is mandatory to obtain sanction/approval

before filing the appeal/petition. He further submitted that appeal against acquittal cannot be filed without the directions/ sanction of the Government

and petitioner’s failure to place it on record goes to the root of the matter, as it would make the instant leave to appeal “non estâ€. He also

submitted that there is no document on record to show that there is sanction/authorization in favour of Mr.Sanjeev Bhandari, learned Special Public

Prosecutor to file the instant petition or that Mr. Sanjay Jain, learned ASG Jain has been authorized to conduct the present appeal.

Learned ASG at the very outset submitted that though grant of approval/authorization to the Public Prosecutor to file leave to appeal/revision is an

administrative order or internal communication and petitioner is under no obligation to show it to the respondents, however, he submitted that he would

place the same on record for perusal and satisfaction of the Court. Since the hearing was being conducted through video conference, he had showed

the relevant documents i.e. approval/ authorization in favour of learned Special Public Prosecutors on screen and also supplied the copy of the same to

the court as well as to all the learned counsels for the respondents.

Learned ASG submitted that filing of instant applications which are frivolous in nature at this stage is, in fact, nothing else but an abuse of the

process of law and wastage of judicial time. At this juncture, what is required to be seen is whether the judgment of acquittal passed by the learned

trial court is perverse or not and consequently whether leave to appeal has to be granted or not, and by raising vague averments, respondents are only

wasting the precious judicial time of this Court.

Mr. Vijay Aggarwal, learned counsel for applicant/respondent No.13, however, argued that it cannot be presumed that if appeal has been filed, then

necessary sanction might have been obtained or granted. He submitted that mandatory requirements provided by the law have to be followed. In this

regard, he has placed reliance upon decision of State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 wherein the Hon’ble Apex Court

while referring to decision in Nazir Ahmed Vs. The King Emperor AIR 1936 PC 253(2) has observed that where a power is given to do a certain

thing in a certain way, then the said thing must be done in that way or not at all. It was submitted that prosecution cannot withhold documents while

presenting a case before the Court. He further submitted that it has been held in catena of judgments that the respondent has an inherent right to

obtain a copy of every such document which has a bearing on the case of the prosecution. Reliance was also placed upon decision in Additional

District Magistrate Vs. State of Jabalpur (1976) 2 SCC 521, which reads as under:-

Most Immediate

By Special Messenger

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel & Training

AVD-II(B)

Subject- Filing of Criminal Appeal in Hon’ble Delhi High Court under Cr.PC against theim pugned judgment

dated 21.12.2017 of Ld. Special Judge in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045) â€" reg.

CBI may kindly refer to their letter No. 184/RC.DAI.2009.A 0045 dated 05.01.2018 on the above subject.

The proposal of CBI to file Criminal Appeal before Hon’ble Delhi High Courut nder Cr.PC against the

impugned judgment dated 21.12.2017 of Ld. Special Judge in CC No. 1 & 1A/2011 (RC.DAI.2009.A.0045) ha

been examined in consultation with ALA, D/o Legal Affairs (DOLA), M/o Law & Justice. ALAD, epartment of

Legal Affairs, Ministry of Law & Legal has opined inter alia that is a fit case to prefer an appeal. A copy of the

advice conveyed by Department of Legal Affairs is enclosed herewith.

It has also been decided to engage Ld. ASG, Shri Tushar Mehta in the abovec ase. Necessary further action

may be taken in the matter accordingly.

(Khushboo Goel Chowdhary)

Deputy Secretary to the Governmentof India

Encls.- As above

Shri Vineet Vinayak, Head of Zone, CBI, Anti-Corruption Branch, 1st Floor, CBI

Headquarters, 5-B, CGO Complex, Lodhi Road, New Delhi-110003.

DoP&T I.D.No.137/03/2018 -VD-II(B) 17 January, 2018

Government has appointed him as per modified notification for the purpose of appeals/revisions arising out of the cases related to 2G Spectrum

investigated by the Delhi Special Police Establishment (CBI) in 2G spectrum cases. The Hon’ble Apex Court held that earlier Mr. Grover, learned

ASG was appointed as Special Prosecutor and services rendered by him are appreciated. However, his appointment was only confined to the trial

court and Government had issued a fresh notification for appeals, revisional proceedings etc. and it was open to the Government to issue fresh

notification and for this reason, the Hon’ble Court allowed the application filed by Mr. Anand Grover, learned ASG for his discharge from the

case.

Learned ASG submitted that by virtue of aforesaid order, the Hon’ble Apex Court has categorically held that the Government has the

prerogative to appoint any Public Prosecutor who is duly qualified to take up the appeals/revisions arising out of the 2G case.

Mr. Sanjay Jain, learned ASG also produced notification dated 6th May, 2019 vide which he was appointed Special Prosecutor for conducting

appeals or revisions before this Court and Hon’ble Apex Court arising out of 2G Spectrum case.

Learned ASG has also brought the attention of this Court to another communication dated 24th May, 2019 issued by the Central Bureau of

Investigation (CBI), wherein reference was made to notification dated 6th May, 2019 vide which he was appointed as Special Public Prosecutor to

conduct appeals/revisions arising out of the 2G Spectrum cases.

Mr. Vijay Aggarwal, Advocate for applicant/respondent No.13, however, submitted that even though the above mentioned documents have been

produced before this Court by learned ASG in support of his submissions, however, the prayer made in his application is yet to be answered. He

submitted that the twin prayers have been made in his application, first one is for directing the petitioner to furnish copy of mandatory approval under

Section 378(2) Cr.P.C. granted by the Government of India for filing the instant leave petition and second, to provide the copies of concerned note

sheets, reports, drafts, letters and correspondence with regard to procedure followed in filing the instant petition.

Mr. Vijay Aggarwal, learned counsel submitted that the documents produced by the learned ASG and copies of which have been supplied to them

by e-mail, do not form part of the record and whatever has been submitted is truncated and not complete record. Learned counsel further submitted

that earlier learned Senior Advocate Mr. U.U.Lalit (as his Lordship then was) was appearing as Special Public Prosecutor before the trial court and

thereafter vide Notification dated 6th March, 2014, Mr. Sanjeev Bhandari was appointed as Special Public Prosecutor to represent CBI in Delhi High

Court in all the appeals, revisions and other proceedings arising out of investigation carried out by the Delhi Special Police Establishment, however,

there is no specific order appointing him for 2G case i.e. in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045). Learned counsel further submitted that

similarly, the communication dated 24th May, 2019 of CBI, is in the form of an advisory to appoint Mr.Sanjay Jain, ASG in cases arising out of 2G

Spectrum cases before the trial court and appellate/revisional court and it also mentions certain annexures, which have not been placed before this

Court.

Learned ASG, on the other hand, referred to the provisions of Section 378(2) Cr.P.C. which contemplates that the Central Government may direct

the Public Prosecutor to present an appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal. He also

submitted that Section 378(2) Cr.P.C. does not refer to appointment of Special Public Prosecutor and it is the prerogative of the Central Government

to appoint as many Prosecutors as it requires in a specified case. Learned ASG also drew attention of this Court to Section 24(8) which reads as

under:-

“ The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been

in practice as an advocate for not less than ten years as a Special Public Prosecutor.â€​

Learned ASG further submitted that appointment of Mr.Tushar Mehta, learned ASG did not mean that he would be the only one to file the leave

to appeal or represent the petitioner in 2G appeals and no other Public Prosecutor can do so. Learned ASG drew attention of this Court to the

provisions of Section 16 of The Advocates Act, 1961 and Bar Council of India Rules, 1975, Chapter-I, Part VI, Restriction on Senior Advocates

(Rules under Section 16(3) and 49(1) (g) of Act) and submitted that since Mr. Tushar Mehta, learned senior advocate was appointed as Special Public

Prosecutor, he could not have filed the petition being a Senior Advocate. Learned ASG submitted that the instant appeal has, therefore, been filed by

Mr. Sanjeev Bhandari, learned Special Public Prosecutor while assisting Mr. Tushar Mehta, learned ASG and, thus, no further inquiry is required to be

made in this matter.

Learned ASG further relied upon decision of Full Bench of Punjab and Haryana High Court in Lal Singh Vs. State of Punjab etc. (1981) 2 ILR

496 and submitted that essence of Section 378(1) Cr.P.C. or Section 378(2) Cr.P.C. is the presentation of the appeal to the High Court and not the

preceding steps leading to the same, namely, the process of the formation of the opinion, the subjective satisfaction or the decision of the State

Government or the consequential direction to present such an appeal.

Learned ASG further submitted that in the instant case, after the opinion was formed by the Government, the present appeal was filed and since

decision to file an appeal is an administrative decision, which lies within the executive powers of the Government, process thereof is not required to be

shown under any Statute. Learned ASG submitted that with regard to filing of the appeal, this Court has only to look into the provision of Section

378(2) Cr.P.C., documents placed before this Court and decision in Lal Singh (Supra) and not the procedure adopted by the Government in forming

the opinion.

Learned ASG submitted that what is required to be seen is as to whether the Public Prosecutor was authorized to file the leave petition or not.

According to learned ASG, as per notification dated 6th March, 2014 issued by Government of India, Mr.Sanjeev Bhandari, Advocate was appointed

as Special Public Prosecutor for the Central Bureau of Investigation to conduct trials of all the appeals, revisions and other matters before this Court,

which arise out of investigation by the Delhi Special Police Establishment (CBI). Learned ASG submitted that it is not the case of respondents that

Mr.Sanjeev Bhandari, Advocate did not have the eligibility to be appointed as Special Public Prosecutor. Thus, according to him there is no illegality in

filing the appeal by Shri Sanjeev Bhandari, learned Special Public Prosecutor.

Learned ASG further submitted that in case a Special Public Prosecutor appointed in an appeal happens to be a Senior Advocate, he is not

supposed to sign or file the same. In such circumstances, he can ask his Junior Associate Counsel to sign and file the same and there is no illegality in

the same. It was submitted that in this appeal, Mr. Tushar Mehta, learned ASG was engaged by virtue of Notification dated 17th January, 2018 for the

purpose of filing appeal against the judgment dated 21st December, 2017 and he was assisted by Mr. Sanjeev Bhandari, Special Public Prosecutor,

who has filed the instant leave to appeal. Learned ASG, thus, submitted that the arguments and objections raised by the respondents are baseless and

the instant leave petition should be heard on merits.

Mr. Sidharth Luthra, learned senior counsel for respondent No.2 argued the matter in detail and submitted that since 2G matters were class of

cases, the Hon’ble Apex Court had appointed Special Public Prosecutors during the trial. He argued that Mr. Sanjeev Bhandari was appointed as

Special Public Prosecutor to represent all the cases pertaining to CBI in Delhi High Court and later on Mr. Tushar Mehta, learned ASG was appointed

to pursue the 2G appeals and because of his appointment, the notification of Mr. Sanjeev Bhandari stood superseded. He was, therefore, not at all

authorized to file the present leave to appeal. Mr. Sidharth Luthra, learned senior counsel for respondent No.2 further submitted that neither Mr.

Sanjeev Bhadari nor learned ASG can represent the petitioner in this case. He, therefore, argued that before the leave petitions are heard, the

jurisdictional aspect has to be considered and seen. In support of his submissions, he relied upon the following case law:-

1). Management of the Express Newspaper (P) Ltd. vs. Workers and Others, (1963) 3 SCR 540,

2). Popular Muthiah Vs. State (2006) 7 SCC 296,

3). Carona Ltd. Vs. Parvathy Swaminathan & Sons (2007) 8 SCC 559,

4). Arun Kumar & Ors. Vs. Union of India & Ors. (2007) 1 SCC 732.

Mr. Sidharth Luthra, learned senior counsel further submitted that the background of the matter is that the Hon’ble Apex Court in Civil Appeal

No. 10660 of 2010 while monitoring the proceedings in the matter, had directed the appointment of Special Public Prosecutors and creating a Special

Court to try 2G cases.

The learned Senior Counsel next argued that Section 24(8) Cr.P.C. uses the word(s)/phrase “cases or class of cases†which is not defined in

the provision. The term “class of cases†has a legal import and has been considered in the context of Article 14 of Constitution of India in the

following decisions:

i. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75,

ii. Lachmandas Kewalram Ahuja v. State of Bombay, AIR 1952 SC 235,

iii. KathiRaningRawat v. State of Saurashtra, AIR 1952 SC 123,

iv. In Re Special Courts Bill, 1978, (1979) 1 SCC 380.

It was further submitted by Mr. Siddharth Luthra, learned Senior Counsel that ordinarily all prosecutions take place by the Government appointed

Public Prosecutor or Additional Public Prosecutor. The appointment of a Special Public Prosecutor under Section 24(8) Cr.P.C. for a ‘cases or

class of cases’ cannot be done as a matter of routine. Further, any such appointment/notification must specify which case or class of cases, the

appointment relates to. He stated that power under Section 24(8) Cr.P.C. cannot be assumed to have been exercised without a notification which is

for a specific purpose, for a specific case or class of cases. While a Public Prosecutor or an Additional Public Prosecutor, who is incharge of the

case, may appear and plead before the Hon’ble Court without any written authority under Section 301(1) Cr.P.C., this provision does not apply to

a Special Public Prosecutor who has to be appointed by a notification and for specific reasons. The notification dated 6th March, 2014 appointing Sh.

Sanjeev Bhandari, Advocate as Special Public Prosecutor only mentions in a generic manner that his appointment is for CBI cases in the Delhi High

Court but is silent in regard to 2G cases.

It was further submitted by Mr. Siddharth Luthra, learned Senior Counsel that appointment of Special Public Prosecutor is to be done only in

exceptional cases and for the reasons to be recorded. In this regard, he has relied upon the following cases:-

i. The Deputy Superintendent and Remembrancer of Legal Affairs v. Gaya Prosad AIR 1914 Cal 560,

ii. MukulDalal v Union of India 1988 (3) SCC 144,

iii. Sunil Kumar v. State of MP, 1992 MPLJ 772,

iv. Rajendra Nigam v. State of MP 1998 Cri LJ 998,

v. Poonamchand Jain v. State of M.P. 2001(2) MPLJ 61,

vi. AdbulKhaderMusliar v. State 1992 Cri LJ 1249.

It was next submitted by learned senior counsel that Advocate General cannot be treated as Public Prosecutor unless appointed under Section

24(8) Cr.P.C. In this regard, he has placed reliance on the following cases:-

i. Rajendran v Ayappan 1985 SCC Online Ker 40’

ii. Rajendra Nigam (Supra) (Follows State of Kerala v. Krishna 1982 Cri LJ 301,

iii. Balachandra Prabhakar Kodlekare v. State of Karnataka MANU/KA/1803/2013.

It was next submitted that in the present case, the notification for Mr. Bhandhari’s appointment can be understood as follows:

a) It was issued in the year 2014 and was not for the 2G matter.

b) The 2G trial was pending at the time of his appointment;

c) His appointment was pursuant to a larger exercise for appointment of CBI Public Prosecutor/s for the High Court;

d) The mere use of the term ‘Special’ in the notification does not comply with S.24(8) Cr.P.C requirements generally and specifically not for 2G

cases.

e) It was also not approved or cleared by the Hon’ble Apex Court at the time though the said Trial was still pending.

It was next submitted that Mr. Bhandari was not empowered to file the present Leave to appeal and this is a jurisdictional fact which has to be

considered first, as laid down by Hon’ble Apex Court in the following decisions:

a. Express Newspapers (P)Ltd. v. Workers & Ors. AIR 1963 SC 569,

b. Carona Ltd. v. Parvathy Swaminathan & Sons (2007) 8 SCC 559,

c. Arun Kumar v. Union of India (2007) 1 SCC 732,

So far as Mr. Bhandari’s right to present an appeal is concerned, it was submitted that the right to file an appeal is governed by Section 378(4)

Cr.P.C and a specific direction is required to do so. In this regard reference was made to the following case laws:-

i. Subhash Chand v. State (Delhi Administration)(2013) 2 SCC 17,

ii. Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602,

iii. ThilayilAbdurahiman v State of Kerala 1997 SCC Online 376,

iv. Lal Singh v State of Punjab 1981 Crl. LJ 1069,

v. State of Kerala v Krishnan 1981 SCC Online Ker 199,

vi. Assistant Commissioner of Central Excise v Sabnife Power Systems Ltd 2002 (9) SCC 389,

It was further argued that it is well-settled law as held in Nazir Ahmed v King Emperor, AIR 1936 PC 253 that if something is to be done in a

particular manner, it must be done in that manner or not at all. It is further submitted that the Apex Court in Dharani Sugars & Chemicals Limited v

Union of India, (2019) 5 SCC 480 has also held that if a Statute confers power to do a particular act and has laid down the method in which that

power is to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed.

It was lastly submitted by learned Senior Counsel that the genesis of the action is legally infirm in this case because of absence of authority to file

the Leave to Appeal by Sh. Sanjeev Bhandari and this is fatal for the prosecution. Reliance in this regard was placed upon State of Punjab v Davinder

Pal Singh Bhullar 2011 (14) SCC 770.

Mr. N. Hariharan, learned senior counsel appearing for respondent No.10 submitted that Section 2(u) Cr.P.C. defines appointment of Public

Prosecutor and Section 24(1) Cr.P.C. provides that Central or State Government, with the consent of High Court, shall appoint a Public Prosecutor in

the High Court for conducting any prosecution or appeal. He submitted that Section 24(8) Cr.P.C. provides that for a class of case or cases, the

Central or State Government may appoint a Special Public Prosecutor, who shall be an Advocate with service of not less than ten years. While

drawing the attention of this Court to the aforesaid provisions, learned senior counsel submitted that since 2G is a special class of case and, therefore,

Special Public Prosecutors were appointed for trial of the same. He, however, submitted that the documents referred to by the learned ASG do not

meet the requirements with regard to appointment of Special Public Prosecutor in the instant petition. Learned senior counsel pointed out that the

notification by virtue of which Mr.Sanjeev Bhandari, Advocate has been appointed as Special Public Prosecutor to represent CBI in Delhi High Court

in all the appeals, revisions and other proceedings arising out of investigation carried out by the Delhi Special Police Establishment, is dated 6th March,

2014. He was, therefore, appointed as a Special Public Prosecutor in Delhi High Court for CBI cases or appeals much before the pronouncement of

the impugned judgment. Whereas in the instant appeal which is of a special class category, a Special Public Prosecutor was required to be appointed

under Section 24(8) of Cr.P.C. for filing appeal after passing of the judgment. Learned counsel further submitted that even the requirement of Section

24(1) Cr.P.C. of seeking permission of the High Court in appointing the Special Public Prosecutor, has not been complied with.

Mr. N.Hariharan, learned senior counsel further argued that in view of the above submissions, Mr. Sanjeev Bhandari, Special Public Prosecutor

for CBI, had no authority to file the instant leave petition as he did not satisfy the criteria under Section 24(1) Cr.P.C., as his appointment was not with

the permission of the High Court and also because of the fact that the notification dated 6th March, 2014 is prior to the date of impugned judgment

dated 21st December, 2017 and did not specify the category/ class of cases he was appointed for.

Learned senior counsel next submitted that notification dated 17th January, 2018 issued by the Central Government appointing Mr. Tushar Mehta,

learned ASG in this case, is under Section 24(8) Cr.P.C. but it does not show that it also fulfills the requirement of Section 24(1) Cr.P.C. Learned

senior counsel further pointed out that after the appointment of Mr.Tushar Mehta , learned ASG by notification dated 17th January, 2018 vide which

he was authorized to appear in this case, any previous notification, became redundant. Learned senior counsel pointed out that since on the date of

filing of the appeal, Mr. Tushar Mehta, ASG was the Special Public Prosecutor for 2G cases, therefore, Mr.Sanjeev Bhandari, Special Public

Prosecutor had no authority to file the appeal. He further submitted that the notification dated 17th January, 2018 nowhere mentioned that he would be

assisted by any counsel. In support of his submissions, learned counsel placed reliance upon the decision of Hon’ble Apex Court in ‘K.

Anbazhagan Vs. State of Karnataka & Ors. (2015) 6 SCC 158’. Learned senior counsel submitted that in K. Anbazhagan (supra), the

Hon’ble Apex Court has held that a Special Public Prosecutor has to be appointed in consultation with the Chief Justice of the High Court in terms

of Section 24(1) Cr.P.C. Learned senior counsel, thus, submitted that appointment of Mr. Tushar Mehta, learned ASG, Mr. Sanjeev Bhandari, Special

Public Prosecutor and Mr.Sanjay Jain, ASG/learned Special Public Prosecutor in this case does not satisfy the criteria under Section 24(1) Cr.P.C.

and Section 24(8) Cr.P.C. Learned senior counsel submitted that since the documents placed on record by learned ASG are truncated and, therefore,

in order to bring out the clear picture, all the office notings, documents etc. are required to be brought on record.

Mr. N.Hariharan, learned senior counsel has also drawn the attention of this Court to 197th Law Commission Report on Public Prosecutor’s

Appointment, dated 31st July, 2006 to submit that Legislature has emphasized that any appointment in violation of Section 24(1) Cr.P.C. will be

violative of Article 14 of Constitution of India and, therefore, appointment of Public Prosecutor in this case has to be within the ambit of Section 24(1)

Cr.P.C. The relevant quoted portion of the aforesaid Report reads as under:-

“Before parting, we are also of the view that appointment of Pubic Prosecutors and Addl. Public Prosecutors in the High Court under

sec. 24(1) by dispensing with consultation with the High Court is clearly violative of Art. 14 as it not only permits arbitrary appointments but

excludes the consultation with the High Court in the matter of appointment of these officers which is crucial. Just as the provision for

consultation of the Chief Justice of a High Court in the matter of appointment of Judges of the High Court is mandatory, on the same

analogy, sec. 24(1) isof highest importance, though it is not a constitutional provision. Absence of consultation process with the High Court

will, in our opinion, clearly violate Art. 14 of the Constitution.â€​

Mr. N.Hariharan, learned senior counsel also submitted that appointment under Section 24(8) Cr.P.C. cannot be made arbitrarily. Learned senior

counsel emphasized that extra ordinary cases require extra ordinary consultation. According to learned senior counsel, any person filing an appeal has

to be appointed in consultation with the High Court. Reliance in this regard was placed upon the decision in State of Kerala Vs. Krishnan 1981 SCC

OnLine Kerala 199.

Mr. D.P.Singh, learned counsel appearing for respondent No. 8 also raised objection with regard to appointment of learned ASG and Special

Public Prosecutor in this case. Learned counsel submitted that trial pertaining to 2G case was conducted by the Special Court under the directions of

the Hon’ble Apex Court and Special Public Prosecutor was also appointed by the Hon’ble Apex Court in this case during the trial. He further

submitted that thereafter, the Government had also appointed Public Prosecutor and Additional Public Prosecutor in this case for trial. He next

submitted that recently vide notification No. F./8/95/2020/HP-II/2626-2639, dated 30th July, 2020 Special Public Prosecutors have been appointed

under Section 24(8) Cr.P.C. for conducting proceedings in bail, trial, appeals, applications and writ petitions etc. in connections with FIRs related to

Citizenship Amendment Act protests and North East District Delhi riots and in the same manner, a notification requiring appointment of a Special

Public Prosecutor in 2G appeals was required to be issued. However, no such notification has been placed on record by learned ASG appearing for

the petitioner. Learned counsel further pointed out that appointment of Mr.Sanjeev Bhandari, Special Public Prosecutor for CBI in Delhi High Court is

of the year 2014 and he has never been specifically appointed for this case and, therefore, he had no authority to file the instant petition. Learned

counsel submitted that before hearing the petition, this Court has to first satisfy itself whether the appeal has been filed by the CBI on the directions of

Central Government.

Mr. Atmaram NS Nadkarni, learned senior counsel appearing for respondent No.5 submitted that he adopts the arguments raised by learned

counsel for the respondents. He has also raised objection with regard to admissibility of documents placed before this court.

Mr. Sanjay Jain, learned ASG submitted that the authority of Mr. Sanjeev Bhandari, Special Public Prosecutor to appear in this case is being

questioned by the respondents. He submitted that by virtue of notification dated 6th March, 2014, Mr. Sanjeev Bhandari was appointed as Special

Public Prosecutor to represent CBI in Delhi High Court and therefore, he is vested with authority to appear in any case or appeal pertaining to the

CBI. Learned ASG submitted that the powers of Mr. Sanjeev Bhandari, learned Special Public Prosecutor in filing the documents /petitions and

appeals on behalf of the CBI, are unfettered. Learned ASG submitted that after the order of the Hon’ble Apex Court dated 12th March, 2018 in

Civil Appeal No. 10660/2010 (supra) was passed, it is now for the Government to appoint a Public Prosecutor/Special Public Prosecutor. It was

further submitted that Mr. Tushar Mehta, learned ASG was not obligated to file the appeal but the appeal was surely filed under his guidance by

Mr.Sanjeev Bhandari, learned Special Public Prosecutor and these are matters of procedure to be followed and not required to be gone into by this

court. Learned ASG once again submitted that the issue in hand is whether leave to appeal is to be granted or not and respondents are raising

completely non productive arguments, which are beyond the jurisdiction of this Court.

During the course of hearing of the application, respondent No.13 filed Crl.M.A. 14091/2020 seeking a direction to petitioner/CBI to place on

record all the documents through official mode with affidavit, which have been placed before this Court during the course of hearing.

Mr. Vijay Aggarwal, learned counsel for applicant/respondent No.13 submitted that in terms of office order No.452/RG/DHC/2020, dated 28th

August, 2020, all filing has to be accompanied by requisite court fees as well as affidavit attested by the Oath Commissioner and in e-filing mode,

scanned copy of the receipt of the court fee, attested affidavit along with petition/suit/appeals/applications, has to be uploaded, failing which it shall be

returned with objections. Learned counsel submitted that the documents/notifications placed before this Court are required to be placed on record with

appropriate court fee and affidavit, which has not been done by the petitioner/CBI. Learned counsel further argued that the Central Government had

first to satisfy itself whether it was a fit case for appeal. In this regard, he has drawn the attention of this Court to Delhi High Court Rules, Vol. II,

Chapter 25, Appeal and Revision- Criminal, which reads as under:-

“Part-E

APPEALS FROM ORDERS OF ACQUITTAL

Appeals to be filed in certain cases- Sessions Judges and District Magistrates should bear in mind the following order to the State

Government regarding appeals against acquittals under Section 417 of the Criminal Procedure Code [See Section 378 of new Code]. The

State Government will not direct an appeal-

XXXXXX

(2) Where, however serious or otherwise important the case, the legal guilt of the accused is fairly questionable or the evidence admits of

any reasonable doubt, and the court has considered and weighed it with impartiality intelligence and care.â€​

Learned counsel further submitted that petitioner/CBI has also failed to produce the relevant document to show that Mr. Sanjeev Bhandari,

learned Special Public Prosecutor had filed the instant petition on the instructions of State Government or the CBI.

Mr. Vijay Aggarwal, learned counsel thereafter relied upon the decision of 11th April, 2010 of the Hon’ble Apex Court in Civil Appeal No.

10660 of 2010, with regard to appointment of Special Public Prosecutor to conduct prosecution on behalf of CBI and ED in 2G Spectrum case,

wherein it was observed that in normal course, the Central Government or State Government may make appointment of a Special Public Prosecutor,

but since the Apex Court was monitoring the 2G case, Mr. K.K. Venugopal, learned senior counsel for CBI and ED, was requested to suggest names

of advocates for appointment as Special Public Prosecutor and thereafter, Mr.U.U.Lalit, learned Senior Advocate (as his Lordship then was) was

appointed as Special Public Prosecutor and learned Senior Advocate was further informed that he may choose two advocates already on the panel of

CBI, to assist him. He also placed reliance upon decision in K. Anbazhagan (Supra) to submit that in somewhat similar case, it was directed that State

of Karnataka in consultation with the Chief Justice of Karnataka shall appoint a senior lawyer having experience in criminal trials, as Public

Prosecutor to conduct the cases, whereas no consultation with Hon’ble Chief Justice of High Court of Delhi has taken place in the present matter.

Mr. Vijay Aggarwal, learned counsel submitted that though Gazette notification dated 16th February, 2018, vide which Mr. Tushar Mehta, learned

ASG was appointed in this case is on record, however, no order has been placed on record showing the names of his assisting counsels. He submitted

that petitioner/CBI has failed to place on record any document showing that Mr. Sanjeev Bhandari, who was appointed as Special Public Prosecutor

for the CBI, was given the authority to assist Mr.Tushar Mehta, learned ASG in this case. Learned counsel next submitted that appointment of

Mr.Tushar Mehta, learned ASG is of the year 2018, that is, after passing of the impugned judgment on 21st December, 2017, whereas Mr. Sanjeev

Bhandari was appointed as Special Public Prosecutor for CBI in Delhi High Court in the year 2014 and, therefore, he could not have filed the appeal.

In continuation of his arguments, Mr. Vijay Aggarwal, learned counsel submitted that Section 378(2) Cr.P.C. is akin to Section 196 Cr.P.C. or

Sec.197 Cr.P.C. He submitted that this Court is vested with the powers to ensure as to whether sanction with regard to filing of the instant petition

was granted or not. He also placed reliance upon decision of the Hon’ble Apex Court in State of Karnataka Vs. Ameerjaan (2007) 11 SCC 273 to

submit that the sanction order must demonstrate that there was proper application of mind on the part of sanctioning authority. Reliance was also

placed upon decisions of Hon’ble Apex Court in Mohd. Iqbai Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172 and State represented by

Inspector of Police, Chennai Vs. N.S.Gnaneswaran (2013) 3 SCC 594 in support of above submissions. Learned counsel also relied upon decision of

this Court in Ashok Kumar Aggarwal Vs. Central Bureau of Investigation 2007(10) AD (Delhi) 73.

Learned counsel further brought attention of this Court to a decision of 31st May, 2002 of a Division Bench of this Court in C.W.P.4235/1996,

Jayadeva Prasad Vs. Union of India (UOI) & Ors. Manu/DE/0792/2002, vide which it was decided as under:-

“5. It is further decided that the Director of Prosecution will be vested with the power of direction and control over the prosecution

offices. However the Director, CBI will continue to exercise general superintendence over the prosecution wing.

It is decided that the duties of the Director of Prosecution will include:-

(a) Supervising and monitoring the conduct of prosecution in courts;

(b) Preferring as well as appearing in appeals, revisions, etc. on behalf of the CBI in Appellate and Revisional Courts;

(c) Giving advice to Police Officers on all matters relating to criminal offences during investigation and trial;

(d) Advising on the feasibility of filing appeals, revisions, etc.;

(e) Preparing a panel of Special Counsels to conduct prosecutions, appeals or revisions on behalf of CJI with the approval of the

Government and operating the same; and

(f) Selecting retainer counsel for High Courts.â€​

Learned counsel submitted that in terms of para 6(e) of the aforesaid decision, the instant petition seeking leave to appeal ought to have been filed

by a special counsel with the approval of the Government.

Learned counsel further submitted that documents shown to this Court should have been filed on affidavit as per Section 297(2) Cr.P.C. which

mandates that the affidavit of a deponent shall state such facts which the deponent is able to prove from his own knowledge and belief and deponent

shall also clearly state grounds of such belief. Learned counsel drew attention of this Court to a decision of 14th March, 2017 of Bombay High Court

in M/S Jaimin Jewelery Exports Pvt. Ltd. Vs. The State of Maharashtra, in this regard.

Mr. Vijay Aggarwal, learned counsel submitted that the stand of learned ASG with regard to sanction to file the leave to appeal or procedure

followed is a question to be raised in writ jurisdiction is incorrect, as this Court under Section 482 Cr.P.C or under Section 151 CPC or under Article

226 of the Constitution of India, has ample power to answer the same.

Per contra, Learned ASG submitted that for appointment of a Special Public Prosecutor, the Central Government is not required to consult any

one. Section 24(8) Cr.P.C. provides for appointment of an Advocate as Special Public Prosecutor and Section 24 of Cr.P.C. does not suggest that

Section 24(8) Cr.P.C. is governed by Section 24(1) Cr.P.C. According to learned ASG, the Legislature could have added any other condition in

Section 24(8) Cr.P.C., if it had so desired. Learned ASG further submitted that the Hon’ble Apex Court while exercising its extra ordinary

inherent power under Article 142 of Constitution of India had appointed a Special Public Prosecutor in 2G case, whereas the controversy with regard

to appointment of Mr.Tushar Mehta, learned ASG as a Special Public Prosecutor in place of Mr. Anand Grover, learned ASG, has been put to rest by

the order dated 12th March, 2018 in Civil Appeal No.10660/2010 (supra).

Learned ASG next submitted that Apex Court’s decision in K. Anbazhagan (Supra) does not state that the Special Public Prosecutor has to be

appointed in terms of Section 24(1) Cr.P.C. He submitted that Section 24 Cr.P.C. is divided into various sub-sections, wherein Section 24(1) Cr.P.C.

requires consultation with High Court but Section 24(8) Cr.P.C. does not require any consultation with High Court for appointment of a Special Public

Prosecutor. Learned ASG relied upon a decision of 15th June, 2017 of High Court of Bombay in Suo Moto Writ Petition No.1 of 2016, Registrar

(Judicial) Vs. The State of Maharashtra & Anr. to submit that it is exclusively in the domain of the Central Government to appoint a Special Public

Prosecutor and Section 24(8) Cr.P.C. cannot be governed by Section 24(1) Cr.P.C.

Learned ASG further submitted that by virtue of decision of Full Bench of Punjab and Haryana High Court in Lal Singh (Supra), procedure

adopted is not required to be shown to the respondents. Learned ASG submitted that for the purpose of trial, the appointment of Special Public

Prosecutor was made by the Hon’ble Apex Court and post trial, field has been left open for the Central Government to appoint Special Public

Prosecutor. Learned ASG further submitted that notification of appointment of any Special Public Prosecutor does not wash away the earlier

notifications, unless specified and the services of already empanelled Special Public Prosecutors can be utilized in any case.

This court has heard the rival contentions raised by learned counsel for the parties, gone through the entire material placed on record and given its

thought to the matters.

Lengthy arguments have been addressed by learned counsel for the respondents and much stress has been laid upon Section 378 (2) Cr.P.C. For

ready reference, Section 378 Cr.P.C. is reproduced hereunder:-

“Section 378 in The Code Of Criminal Procedure, 1973

Appeal in case of acquittal.

(1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in

any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by

any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.]

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment

constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation

into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an

appeal, subject to the provisions of sub- section (3), to the High Court from the order of acquittal.

(3) No appeal under sub- section (1) or sub-section (2) shall be entertained except with the leave of the High Court.

(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the

complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the

High Court.

(5) No application under sub- section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High

Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date

of that order of acquittal.

(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no

appeal from that order of acquittal shall lie under sub- section (1) or under sub- section (2) .

Learned counsels for the respondents have laid much stress upon the words ‘Central Government may also direct the Public Prosecutor to

present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal’ appearing in the provision. It is argued

that in terms of Section 378 (2) Cr.P.C., it was mandatory for the appellant to first obtain a sanction/ approval of the Government before filing the

appeal and the appellant was also duty bound to place the same on record along with note-sheets, correspondence and file containing

sanction/approval. It was further argued that the petitioner has even failed to place on record any authorization in favour of Mr.Sanjeev Bhandari,

Special Public Prosecutor to file the present leave to appeal as well as in favour of Mr. Sanjay Jain, learned ASG to conduct the same.

Learned ASG further argued that even approval of the Government to file the appeal or the notings in the file or decision taken by the Government

is not required to be shown to the respondents as these are internal matters of the Government. However, later on during the course of arguments, to

satisfy the curiosity of respondents regarding appointments, learned ASG shared the documents regarding authorization/ approval in favour of Special

Public Prosecutors on screen and copies were supplied to the court and also given to learned counsels for the parties.

This Court has gone through the notifications placed on record. The first notification pertains to appointment of Shri Sanjeev Bhandari by Central

Government as Special Public Prosecutor for Delhi High Court for conducting the prosecutions, appeals, revisions or other matters investigated by

CBI. It runs as under:-

[To be published in the Gazette of India in part-II Section-3, Sub- section (ii)]

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel & Training)

****

NOTIFICATION

New Delhi dated 6-03-2014

S.O. …………………….. In exercise of the powers conferred by sub- section (8) of Section 24 of the Code

of Criminal Procedure, 1973 (Act No. 2 od 1974). The CentralG overnment hereby appoints S/Shri Sanjeev

Bhandari and K. Raghavacharyulu, Advocates as Special Public Prosecutors of the Delhi Special Police

Establishment (Central Bureau of Investigation) in Delhi High Court at NewD elhi for conducting the prosecution

appeals, revisions or other matters arising out of the cases investigated by the Delhi Special Police Establishment

(CBI).

[F. No. 225/14/2014- AVD-II]

(Rajiv Jain)

Under Secretary to Government of India

To

The Manager,

Government of India Press

Mayapuri, Ring Road,

New Delhi- 110064

No.225/14/2014-AVD-II New Delhi dated 6 March, 2014

Copy to:

The Chief Secretary, Government of Delhi, New Delhi.

The Registrar, Delhi High Court, New Delhi.

The Director, Central Bureau of Investigation, New Delhi.

Director of Prosecution, Central Bureau of Investigation, New Delhi.

Department of Legal Affairs, Shastri Bhavan, New Delhi.

Guard File.

(Rajiv Jain)

Under Secretary to Government of India

Perusal of above notification clearly shows appointment of Mr. Sanjeev Bhandari as Special Public Prosecutor for CBI, for the purpose of

conducting appeals, revisions etc. The learned ASG has also placed on record the communication of 17th January, 2018 of Government of India

opining that it was a fit case to file an appeal and also the decision to engage Mr. Tushar Mehta learned ASG (now learned AG) to represent the

case.

Most Immediate

By Special Messenger

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel & Training

AVD-II(B)

Subject- Filing of Criminal Appeal in Hon’ble Delhi High Court under Cr.PC against theim pugned judgment

dated 21.12.2017 of Ld. Special Judge in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045) â€" reg.

CBI may kindly refer to their letter No. 184/RC.DAI.2009.A 0045 dated 05.01.2018 on the above subject.

The proposal of CBI to file Criminal Appeal before Hon’ble Delhi High Courut nder Cr.PC against the

impugned judgment dated 21.12.2017 of Ld. Special Judge in CC No. 01 & 1A/2011 (RC.DAI.2009.A.0045) ha

been examined in consultation with ALA, D/o Legal Affairs (DOLA), M/o Law & Justice. ALAD, epartment of

Legal Affairs, Ministry of Law & Legal has opined inter alia that is a fit case to prefer an appeal. A copy of the

advice conveyed by Department of Legal Affairs is enclosed herewith.

It has also been decided to engage Ld. ASG, Shri Tushar Mehta in the abovec ase. Necessary further action

may be taken in the matter accordingly.

(Khushboo Goel Chowdhary)

Deputy Secretary to the Governmentof India

Encls.- As above

Shri Vineet Vinayak, Head of Zone, CBI, Anti-Corruption Branch, 1st Floor, CBI Headquarters, 5-B, CG

Complex, Lodhi Road, New Delhi-110003.

DoP&T I.D.No. 137/03/2018- AVD-II(B) 17 January, 2018

[TO BE PUBLISHED IN THE GAZETTE OF INDIA IN PART- 2

SECTION3(2)]

DY No. 726/DOP Sec.

GOVERNMENT OF INDIA Dated 06.05.2019

MINISTRY OF PERSONNEL,PUBLIC GRIEVANCES AND

PENSIONS

(DEPARTMENT OF PERSONNEL AND TRAINING)

NEW DELHI

DATED: 06.05.2019

NOTIFICATION

The Central Government hereby appoints SHRI. Sanjay Jain, Additional SolicitorG eneral as Special Public

Prosecutor for conducting Appeals or revisions etc. before the High Court and Apex Court in 2G spectrum case

along with Shri Tushar Mehta, Solicitor General of India. Further, Shri Sanjay Jain willa ppear on the said appeal

or revision on 2G Spectrum cases under the direct supervision of Ld. Solicitor General of India and whenever it is

desirable, the Ld. Solicitor General of India would appear and argue the matter at his discretion.

[F.No. 225/59/2014-AVD-2 ]

PK JAISWAL

UNDER SECRETARY TO THE GOVERNMENT Of INDIA

The Manager

Government of India Press

Mayapuri, Ring Road

NEW DELHI, 110064

No. 225/59/2014-AVD-2

New Delhi Dated 06/05/2019

Copy Forwarded for information to

The Registrar, Apex Court of India, New Delhi

The Registrar, Delhi High Court, New Delhi

The Accountant General, Central Revenues, New Delhi

The Pay and Accounts Officer, CBI,CGO Complex, New Delhi

Direction of Prosecution, CBI, CGO Complex, New Delhi

Department of legal affairs, New Delhi

Guard File

PK JAISWAL

UNDER SECRETARY TO THE GOVERNMENT OF INDIA

Thereafter, learned ASG also placed on record communication dated 24th May, 2019 issued by CBI which referred to his appointment as Special

Public Prosecutor in the present matter vide notification no. 225/59/2014-AVD-II dated 6th May, 2019. The same runs as under:-

CENTRAL BUREAU OF INVESTIGATION

DIRECTORATE OF PROSECUTION

PLOT NO. 5B, 9th FLOOR, CBI HQ BUILDING

CGO COMPLEX, LODHI ROAD

NEW DELHI

Subject: Proposal for engagement of Shri. Sanjay Jain Additional Solicitor General asS pecial Public Prosecutor to

conduct prosecution, appeals/ revisions or other proceedings arising out of the cases related to 2G Spectrum cases

before 2G trial court and Appellate/ Revisional courts- regarding

Please find enclosed herewith DoPT Approval & Notification No. 225/59/2014-AVD-II dated 6.05.2019

engagement of Shri. Sanjay Jain Additional Solicitor General as Special Public Prosecutor to conduct prosecution,

appeals/revisions or other proceedings arising out of the cases related to 2G Spectrum cases before 2G trial court

and Appellate/ Revisional courts.

This is for information and taking necessary action in the matter.

(MUNISH KUMAR SHARMA)

Office Supdt. CBI, HO, DOP

New Delhi

Encl: As above.

HoB, CBI, ACB, New Delhi.

CBI, I.D. No. 394/11/3/2018- DOP

Dated: 24/5/2019

Learned counsels for the respondents were, however, not satisfied with the above notifications and submitted that all the documents shown by the

learned ASG, copies of which were also supplied to them should have been filed on affidavit. In this regard reference was made to the decision of

M/S Jaimin Jewelery Exports Pvt. Ltd. Vs. The State of Maharashtra (supra).

This Court has thoroughly gone through the above judgment which clarifies as to how an affidavit has to be drafted for filing the same in the court.

The above pronouncement of Hon’ble Apex Court related to a case under Section 138 of Negotiable Instruments Act and it was discussed in the

said case as to what should be the contents of the affidavit and it must state and specify as to what portion pertains to deponent’s knowledge and

what is written on his information or belief.

In the opinion of the Court, the above judgment is not relevant in the present context. The documents in the present petition were shown to the

Court by the learned ASG to dispel the doubt lingering in the mind of respondents that perhaps Mr. Sanjeev Bhandari, learned Special Public

Prosecutor has filed the leave to appeal without any authority and Mr. Sanjay Jain, learned ASG is unauthorizedly representing CBI on his own

without any approval from the Government of India. In fact, this Court had never asked the learned ASG to file the documents and thus, there was no

occasion or reason for learned ASG to file the said documents on affidavit. Moreover, the notification of Mr. Sanjeev Bhandari, Special Public

Prosecutor and Mr. Sanjay Jain, learned ASG has already been published in the official Gazette and there was no need to file the same alongwith

affidavit. The learned counsels have questioned the appearance of learned ASG in the leave to appeal as if he was appearing without any approval or

sanction inviting unwarranted trouble for himself and endangering his reputation and standing at bar and exposing himself not only to disciplinary

proceedings by Bar Council but also inviting wrath of the CBI as to why he is so enthusiastic to appear without any authority. The contention raised by

learned counsels for the respondents is, therefore, devoid of any substance and is hereby rejected.

Let this Court now decide another important issue raised by learned counsels for the respondents which according to them goes to the root of the

matter and it pertains to placing on record all the note-sheets, drafts, correspondences and file containing sanction or approval vide which decision was

taken to file the appeal.

Mr. Vijay Aggarwal, learned counsel and Mr. Siddarth Luthra and Mr. N. Hariharan, learned senior counsels have vehemently argued that

prosecution cannot withhold any document while presenting a case. The prosecution be, therefore, directed to place on record all the relevant

documents, note-sheets, drafts and concerned file granting sanction as well as order of sanction. Learned counsel, Mr.Vijay Aggarwal in this regard

has also placed reliance on the decision of Hon’ble Apex Court in “Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, wherein it was held

that where a power is given to do a certain thing in a certain manner, then the thing must be done in that way or not all. The learned counsel also

relied upon decision in “Additional District Magistrate Vs. State of Jabalpur (1976) 2 SCC 521, and further submitted that respondent has an

inherent right to obtain a copy of every such document which has bearing on the case.

This Court is in total agreement with the law laid down in the authorities cited by the learned counsels. However, the documents sought by them

can only be placed on record, provided it is the mandate of law to do so and such mandate is also reflected by Section 378 Cr.P.C. Perusal of Section

378 Cr.P.C. however, reveals that it is totally silent about the fact that all proceedings which have culminated into a decision to file an appeal by the

Government should be supplied to the learned counsels for the respondents. Moreover, the procedural part which has resulted in formation of opinion

by the Government are internal proceedings of Government. The learned Public Prosecutor’s duty is only to file an appeal if so directed by the

Government. Whether the decision taken by the Government to file an appeal was correct or not will be decided by this Court while deciding the leave

petition after hearing the learned counsels for the parties and going through the evidence and not on the basis of notes, drafts or opinion appearing in

Government files. In this regard, reference can be made to full Bench judgment of Punjab and Haryana High Court in “Lal Singh Vs. State of

Punjab etc. 1981 Crl LJ 1069â€​ wherein it was held that the Government has to form an opinion that the judgment of acquittal deserves to be appealed

against or not and Section 378 (1) Cr.P.C. does not even remotely makes mention of the process for the formation of such an opinion or decision to do

so. It only contemplates presentation of appeal on the direction of the Government through the medium of Public Prosecutor. It was further held that

ultimate decision i.e. the whole process starting from the consideration of the judgment through the channels of various officials is not contemplated by

any statutory provision. In essence, it was held that presentation of appeal to the High Court and not the preceding steps i.e. decision of the State

Government etc. is contemplated under Section 378 of the Cr.P.C. The relevant paras of the judgment run as follows:-

“22. Now it is axiomatic that before the power or the right to present an appeal against an order of acquittal under Section 378(1) is

exercised, the State Government must arrive at a clear opinion that the judgment of acquittal deserves to be appealed against. The

formation of such an opinion must inevitably precede the presentation of an appeal. What deserves highlighting here is the basic fact that

Section 378(1) does not even remotely make mention of the process for the formation of such an opinion nor of the decision to do so. It only

envisages the presentation of appeal on the direction of the State Government through the medium of the Public Prosecutor. This being

patently so the learned Additional Advocate General seems to be on a firm footing in his submission that both the process of the formation

of an opinion for preferring an appeal against the judgment of acquittal as also a positive decision to this effect is inherently administrative

in nature. The subjective satisfaction of the State Government whether a particular judgment of acquittal calls for being challenged by way

of appeal and the process by which this satisfaction or decision is to be arrived at is neither governed nor prescribed by any statutory

provision, far less any specific section of the Code itself.

Therefore it would appear that the mode of the formation of the opinion and the ultimate decision in this regard by the State Government is

within the ambit of and entirely governed by the general executive power of the State Government under Article 162 of the Constitution of

India and is thus purely administrative.

Viewed from another angle it would seem that there is no statutory provision in the Code (nor has any such provision in any other

enactment been brought to our notice) which mandates or obliges the State Government to examine every or any judgment of acquittal. It

would follow, therefore, that the State Government may in its discretion consider or even refuse to consider or examine a judgment for the

purpose of arriving at an opinion whether it should be appealed against or not. The ordinary practice and process for preferring appeals

against acquittal, namely, that the Public Prosecutor conducting the case would opine and the District Magistrate may recommend the filing

of the appeal thereunder to the Government and the State would then proceed to form its opinion to prefer an appeal is plainly not

prescribed in terms by any statutory provision as such. It is a practice or procedure under the inherent executive functions of the State

under Article 162 of the Constitution of India. Similarly the ultimate decision or the subjective satisfaction of the Government as also the

whole process beginning from the consideration of the judgment through the channel of recommendatory officials is not one which has

been laid out either in the Code itself or by any other tatutory rule on the point but is wholly circumscribed by the purely executive power of

the State. Section 378(1) does not either in express or implied terms adverts to the process of the formation of the State's opinion or its

culmination one way or the other. Reference in this connection may instructively be made to the observations of their Lordships of the Apex

Court in Barium Chemicals Ltd. v. Co. Law Board . What, therefore, deserves highlighting is the fact that any words about the formation of

an opinion are conspicuous by their very absence in Section 378(1) of the Code. Again it does not even make a mention of any decision of

the State Government consequent thereto. Therefore, the very absence of the word 'opinion' or 'decision' in the statute has to be given its

necessary import.

To conclude on this aspect we would hold that the process of the formation of the opinion as also the decision by the State Government

to prefers an appeal against an order of acquittal is purely administrative and derives its source from the general executive power of the

State under Article 162 of the Constitution of India. Consequently the date and time of such a purely administrative decision is of little

relevance in determining the crucial issue as to when the power under Section 378 of the Code would stand exhausted.

Coming now to the mode of presenting of an appeal against the order of acquittal it calls for notice that the statute visualises a direction

to the Public Prosecutor to present an appeal to the High Court, Plainly the presentation of the appeal is the dominant objective and the

direction to the Public Prosecutor is only a mode of achieving the same. The direction to the Public Prosecutor cannot be divorced from the

presentation of an appeal and it would be hyper technical to dissect it from the same and treat it as an independent entity. To put it in other

words the essence of Section 378(1) is the presentation of the appeal to the High Court and not the preceding steps leading to the same,

namely, the process of the formation of the opinion, the subjective satisfaction or the decision of the State Government or the consequential

direction to present such an appeal. Therefore it follows that the date and the time of the direction alone to the Public Prosecutor for

presenting the appeal is a matter of little or no significance for determining as to when the power under Section 378 would exhaust itself.â€​

(emphasis supplied)

Perusal of the above judgment clearly reveals that Section 378 (1) and (2) of Cr.P.C. does not make reference to or contemplate as to how the

Court has arrived at a decision to file an appeal. The process of formation of opinion for preparing an appeal against the judgment of acquittal i.e.

analysis of the judgment, notes, drafts and files pertaining to sanction or even grant of sanction i.e. the process of arriving at a decision to file or not to

file an appeal and subjective satisfaction of the Government is not governed by any statutory provision. It is rightly observed in the above judgment

that Section 378 Cr.P.C. nowhere mentions the word ‘opinion’ or ‘decision’ which may give a right to the respondents to challenge the

same being perverse or mala fide. Thus, what the provision contemplates is the presentation of an appeal and not the preceding steps leading to the

same. In view of the above law, the contentions of learned counsels for respondents seeking to place on record communication, drafts, notes in the file

relating to grant of sanction or approval, is rejected being beyond the scope of Section 378 (2) Cr.P.C.

Next contention of learned counsels for the respondents was that Mr. Sanjeev Bhandari, learned Special Public Prosecutor and Mr. Sanjay Jain,

learned ASG, have not been properly appointed for the reason that 2G spectrum cases were monitored by the Hon’ble Apex Court and Special

Public Prosecutors were appointed to conduct the trial. The appointment of other counsels/ Public Prosecutors i.e. Mr. Sanjeev Bhandari or Mr.

Sanjay Jain, is against the spirit and order of the Hon’ble Apex Court and, therefore, their appointments come under a cloud and they could not

have filed or conducted the leave to appeal.

This Court has carefully considered the above contention of learned counsels for the respondents. Learned ASG, in this regard, has drawn the

attention of this court to the order of the Hon’ble Apex Court in Civil Appeal No. 10660/2010 (Supra) dated 12th March, 2018 and submitted that

vide said order, it was left open for the Government to appoint a Public Prosecutor/ Special Public Prosecutor after conclusion of 2G trial. This Court

has carefully gone through the order of the Hon’ble Apex Court in which the appointment of Mr. Tushar Mehta, learned Standing Counsel, to

appear in appeals arriving out of 2G cases in place of Mr. Anand Grover, learned ASG, was challenged. The Hon’ble Apex Court had dismissed

the said appeal and observed that Mr. Anand Grover was appointed as Special Prosecutor for the purpose of trial in 2G cases and the court

appreciates the services rendered by him. It was next observed by the Hon’ble Apex Court that appointment of Mr. Anand Grover was confined

to the trial court only and it was open to the Government to issue fresh notification for other courts, appeals, revisional proceedings etc. The

Hon’ble Apex Court had also accepted the application of Mr. Anand Grover seeking his discharge from the case. The Court had further

specifically observed that no contempt was made out because of appointment of Mr. Tushar Mehta, learned ASG in place of Mr. Anand Grover as

the cases before trial court were over and Mr. Anand Grover was appointed for conducting trial before learned trial court only. The Hon’ble

Apex Court’s order runs as under:-

“…Considering the importance of this matter, earlier, this Court had appointed Shri U.U. Lalit as Special Prosecutor. Since Shri Lalit

has been elevated as Judge of this Court, this Court vide order dated 02.09.2014 nominated Shri Anand Grover as counsel for the C.B.I.

and the Enforcement Directorate in the proceedings before the “Trial Courtâ€. Thereafter, the Government of India had issued

notification on 26.11.2014 and 27.11.2014 appointing Shri Anand Grover as Special Public Prosecutor for conducting prosecution,

appeals/revisions or other proceedings rising out of the cases related to 2G Spectrum investigated by the Delhi Special Police Establishment

(CBI) in the Court of Special Judge (2G Spectrum cases), Central Bureau of Investigation, New Delhi and appellate/revisional courts and

vide notification dated 27.11.2014 Shri Anand Grover was appointed as Special Public Prosecutor for conducting prosecution,

appeals/revisions or other proceedings out of the cases under the Prevention of Money Laundering Act, 2002 etc. arising out of 2G

Spectrum cases on behalf of the Directorate of Enforcement before the Special Court of PMLA and appellate/revisional and higher Courts.

Thereafter, Shri Anand Grover had conducted the matters. However, it is stated by Shri Grover that the cases which were pending before

the trial court at the time when he was appointed are over.

Now, the Government has issued a notification appointing Shri Tushar Mehta, Sr.Adv, in exercise of the power conferred by sub-section (8)

of section 24 of the Code of Criminal Procedure, 1973 (2 of 1974). The Central Government has appointed him as per modified notification

for the purpose of “Appeals/revisions or other proceedings arising out of the cases related to 2G Spectrum investigated by the Delhi

Special Police Establishment (CBI) is the Court of Special Judge (2G spectrum cases, Central Bureau of Investigations, New Delhi

appellate/revisional Courtsâ€, arising out of the cases related to 2G Spectrum investigated by the Delhi Special Police Establishment (CBI)

in the Court of Special Judge “2G spectrum cases, Central Bureau of Investigation, New Delhiâ€​.

Contempt application has been filed on behalf of the petitioner CPIL i.e. in Contempt Petition (C) No.793 of 2018 questioning appointment

of Mr. Tushar Mehta. An application No.28660 of 2018 has been filed by Shri Anand Grover to discharge him from the cases.

After hearing the learned counsel for the parties, are of the opinion that Shri Grover was appointed as Special Prosecutor by this Court. We

appreciate the services rendered by him. At the same time, since his appointment was confined to the trial court and Government had issued

a notification for other courts, appeals, revisional proceedings etc. it was open to the Government to issue fresh notification and in the

facts, we allow the application filed by Shri Anand Grover for his discharge from the case.

In the aforesaid circumstances, we find that no contempt is made out since the cases are over before the trial court for which purpose, this

Court had appointed Shri Anand Grover as special Public Prosecutor. It cannot be said to be a case of contempt committed by the

Government while appointing Shri Tushar Mehta as Public Prosecutor vide aforesaid modified notifications. No case is made out to proceed

with the contempt petition and the same is hereby dismissed.

(Emphasis supplied)

In view of the above order of the Hon’ble Apex Court, it is clear that Government was free to appoint anyone as Special Public Prosecutor or

authorize any Prosecutor or counsel to file the appeal and, therefore, to submit that the filing of criminal leave to appeal by Mr. Sanjeev Bhandari and

appointment of Shri Sanjay Jain, learned ASG is against the mandate of Hon’ble Apex Court, will not be correct.

Let this Court now proceed to the next argument of learned counsels for the respondents that appointment of Mr. Sanjay Jain, learned ASG to

conduct the present appeal is bad in law and non est as he was not properly appointed under Section 24 (8) of Cr.P.C. As mentioned in earlier part of

the judgment, it was argued that appointment of Mr. Sanjay Jain does not carry the approval or consent of the Hon’ble the Chief Justice as per

Section 24 (1) of Criminal Procedure Code. Section 24 of the Cr.P.C. deals with appointment of Public Prosecutors. It runs as under:-

Public Prosecutors.

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public

Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or

other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any

district or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public

Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be

appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to

be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless

his name appears in the panel of names prepared by the District Magistrate under sub- section (4).

(6) Notwithstanding anything contained in sub- section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State

Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:

Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that

Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names

prepared by the District Magistrate under sub- section (4).

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub- section (1) or sub-

section (2) or sub- section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in

practice as an advocate for not less than ten years as a Special Public Prosecutor.

Section 24 (1) Cr.P.C. no doubt contemplates that the Central Government or State Government after consultation with the High Court will

appoint a Public Prosecutor or one or more Additional Public Prosecutor for conducting any prosecution, appeal or other proceedings on behalf of the

Government. Thus, consultation with High Court is required for appointment of a Prosecutor or Additional Public Prosecutors under Section 24(1) of

Cr.P.C. However, no such condition is attached to Section 24 (8) Cr.P.C. to appoint special Public Prosecutor. There is nothing on record which

suggests that Section 24 (8) Cr.P.C. is governed by Section 24 (1) Cr.P.C. To bring the contents of Section 24 (1) Cr.P.C. into Section 24 (8) Cr.P.C.

will be to frustrate the intent of Legislature. A plain reading of Section 24 (8) Cr.P.C suggests that Government is free to appoint a Special Public

Prosecutor for the purpose of any case or class of cases. The only condition attached to this is that the learned Advocate so appointed must be in

practice as an Advocate for not less than ten years and this is not in dispute that both Mr. Sanjeev Bhandari, learned Special Public Prosecutor and

Mr. Sanjay Jain, learned ASG fulfill the above criteria.

Learned counsels for the respondents have, however, referred to the judgment of Hon’ble Apex Court in K. Anbazhagan Vs. State of

Karnataka & Ors. (2015) 6 SCC 158 in support of their contention. Perusal of the said judgment reveals that it does not further the case of the

respondents. The brief facts of the said case are that case pertaining to prosecution of Ms. J.Jayalalithaa, who was the Chief Minister of Tamil Nadu

under Section 120B of the Indian Penal code read with Section 13(1) & 13(2) of the Prevention of Corruption Act, 1988 was transferred from the

State of Tamil Nadu to State of Karnataka on the direction of the Hon’ble Apex Court. The observation regarding appointment of Special Public

Prosecutor in consultation with Chief Justice, Karnataka High Court was made by the Hon’ble Apex Court in the peculiar facts of the case as it

related to the transfer of a case from State of Tamil Nadu to State of Karnataka and this is not the case here nor any such direction has been passed

by the Hon’ble Apex Court.

On the other hand, in the case in hand, vide notification dated 6th March, 2014, issued by Government of India, Mr. Sanjeev Bhandari has been

appointed as Special Public Prosecutor for Central Bureau of Investigation by virtue of Section 24(8) of Cr.P.C. in Delhi High Court for conducting

the prosecution, appeals, revisions or other matters arising out of the case investigated by Delhi Special Police Establishment. This notification has not

been specifically superceded by any subsequent notification. The appointment of Mr. Tushar Mehta, learned ASG as Special Public Prosecutor to

conduct 2G trials did not mean that appeal should have been filed by him only. In fact, being a Senior Advocate, he could not have drafted or filed the

appeal and that is why, Mr. Sanjeev Bhandari, Special Public Prosecutor has done it and he has been so authorized to do by virtue of notification

which is quoted again for ready reference:-

[To be published in the Gazette of India in part-II

Section-3, Sub-section (ii)]

Government of India

Ministry of Personnel, Public Grievances and Pensions Department of Personnel & Training)

****

NOTIFICATION

New Delhi

dated 6-03-2014

S.O. …………………….. In exercise of the powers conferred by sub-section (8) of Section 24 of the Code of

Criminal Procedure, 1973 (Act No. 2 od 1974). The Central Government hereby appoints S/Shri Sanjeev Bhandari

and K. Raghavacharyulu, Advocates as Special Public Prosecutors of the Delhi Special PoliceE stablishment

(Central Bureau of Investigation) in Delhi High Court at NewD elhi for conducting the prosecution appeals,

revisions or other matters arising out of the cases investigated by the Delhi Special Police Establishment (CBI).

[F. No. 225/14/2014- AVD-II]

(Rajiv Jain)

Under Secretary to Government of India

To

The Manager,

Government of India Press

Mayapuri, Ring Road,

New Delhi- 110064

No.225/14/2014-AVD-II New Delhi dated 6 March, 2014

Copy to:

The Chief Secretary, Government of Delhi, New Delhi.

The Registrar, Delhi High Court, New Delhi.

The Director, Central Bureau of Investigation, New Delhi.

Director of Prosecution, Central Bureau of Investigation, New Delhi.

Department of Legal Affairs, Shastri Bhavan, New Delhi.

Guard File.

(Rajiv Jain)

Under Secretary to Government of India

Thus, the appeal, of course, was to be conducted by learned ASG as Special Public Prosecutor but there was no bar for Mr. Sanjeev Bhandari to

file the same. Mr. N.Hariharan, learned senior counsel and other learned counsels have, however, submitted that the impugned judgment is dated 21st

December, 2017 whereas Mr. Sanjeev Bhandari was appointed as Special Public Prosecutor on 6th March, 2014 i.e. much before filing of the appeal.

He was, therefore, not authorized to file the same. This Court has given its thought to the matter. As discussed earlier, since Mr. Tushar Mehta,

learned ASG could not have filed the leave to appeal being a senior counsel, Mr. Sanjeev Bhandari who has been appointed and authorized vide

notification dated 6th March, 2014, has done so and as stated earlier his appointment has not been specifically superceded by another notification. In

these circumstances, there seems to be no illegality in filing the appeal by him.

Mr. Vijay Aggarwal, learned counsel has next argued that every sanction order must reveal that there was proper application of mind by

Sanctioning Authority. In this regard, he has placed reliance upon Hon’ble Apex Court’s decision in State of Karnataka Vs. Ameerjaan

(2007) 11 SCC 273; Mohd. Iqubai Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172 and State represented by Inspector of Police, Chennai Vs.

N.S.Gnaneswaran (2013) 3 SCC 594. He has also relied upon decision of this Court in Ashok Kumar Aggarwal Vs. Central Bureau of Investigation

2007(10) AD (Delhi) 73.

This Court has perused the above authorities and is of the opinion that the same do not help the respondents. As held earlier, there is no need for

any sanction as Section 378 (2) Cr.P.C. nowhere contemplates obtaining of any previous sanction as contemplated in Section 196 or 197 of Cr.P.C.

Therefore, there was no need or requirement to produce any sanction, note-sheet, file or approval to file the present leave to appeal.

A number of judgments were filed before this Court by learned counsels for the respondents. This Court has carefully gone through all the

judgments and is of the opinion that there is no quarrel with the proposition of law laid down therein. However, these cases are distinguishable on the

basis of facts and circumstances stated therein. It is well settled that judicial precedent cannot be followed as a Statute and has to be applied with

reference to the facts of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of

the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has

to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts

may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without

regard to the factual situation and circumstances of the two cases. Thus, the judgments which are based upon their own peculiar facts and

circumstances are distinguishable and do not help the learned counsels for the respondents.

In view of the above discussion, this Court is of the opinion that petitioner/CBI is not bound to disclose or furnish on record the copy of any

approval/ sanction or notes for filing appeal under Section 378(2) Cr.P.C. for the reason that the essence of Section 378(2) Cr.P.C. is the presentation

of the appeal to the High Court and not the preceding steps leading to the same, namely, the process of the formation of the opinion, the subjective

satisfaction or the decision of the Government to present an appeal. Thus, it is difficult to interpret Section 378(2) of Cr.P.C. in the manner in which

the learned counsels for the respondents intend this Court to interpret.

They intend that this Court should read the words ‘previous sanction’ in Section 378(2) of Cr.P.C., whereas the Legislature has not provided

the same. The words ‘formation of opinion’ or ‘how it is arrived at’ is conspicuously absent in Section 378 (2) of Cr.PC. In these

circumstances, this Court is of the opinion that respondents are not entitled to the relief claimed for and petitioner cannot be directed to place on

record copies of drafts, letters, reports or approval to file the present leave to appeal.

As discussed earlier, the appointment of Mr. Sanjeev Bhandari, learned Special Public Prosecutor to file the leave to appeal and Mr. Sanjay Jain,

learned ASG to conduct the same, is in consonance with law. The order of the Hon’ble Apex Court dated 12th March, 2018 in Civil Appeal No.

10660 of 2010 (Supra) has dispelled all the doubts and has categorically stated that Special Public Prosecutor in 2G case was appointed for the

purpose of conducting trials only before learned Special Judge and Central Government was free to appoint anyone post trial.

In view of the above discussion, it is hereby held that Government is not under any obligation by virtue of any provision of law to place on record

the documents i.e. note sheets, letters, correspondence or approval to file an appeal and it is also not mandated by Section 378 (2) Cr.P.C.

With aforesaid observations, these applications are dismissed.

The order be uploaded on the website of this Court forthwith.