SC buries Sahara-Birla payoff diaries for ever
The Supreme Court (SC) on Tuesday dismissed the “Sahara-Birla diaries” as loose sheets of paper that cannot form “admissible evidence” to prosecute high constitutional and political functionaries named as alleged recipients of corporate payoffs.
Leaders across the political spectrum heaved a sigh of relief after the much-awaited SC decision removed the cloud of corruption charge hanging over top political leaders, including Prime Minister Narendra Modi (when he was Gujarat Chief Minister) and several other former and present Chief Ministers cutting across party lines.
Banking on the contents of the diaries, a PIL by NGO Common Cause alleged that the details of payoffs had created a public perception that corporate in the country can achieve anything by paying bribes to the political leadership and get away without being punished. Reading out the names of the who’s who in politics, be it Modi, Mulayam Singh, Mayawati, Lalu Prasad, Union Law Minister Ravi Shankar Prasad, or Congress leader Salman Khurshid, advocate Prashant Bhushan demanded registration of a first information report (FIR) and setting up of a special investigation team to probe the allegations.
The Bench of Justices Arun Mishra and Amitava Roy was not amused by his contention. Dismissing the petition, the SC said, “If we allow such a prayer, the process of law can be abused to achieve ulterior goals. No democracy can survive in case investigation is readily set in motion against high
constitutional functionaries unless cogent evidence is brought on record.”
Dealing with the diaries, computer entries and emails disclosing the payoff details, the SC said, “These are random computer entries MS Excel sheets, diaries, emails that are not maintained in regular course of business forming official records of company. Such materials do not classify as evidence as required under Sections 65 and 65A of Evidence Act.”
The court referred to the Jain Hawala diary case where the SC had struck down the investigation based on a diary showing similar payoffs to political leaders. In that judgment, it was held that statements made in accounts of the company alone can be treated as evidence to charge a person. “Accounts” of a company was defined to mean spiral notebook but not loose sheets.
In the present case, the court held that at best the evidence could be treated as “corroborative evidence” but cannot be “cogent” evidence and hence was irrelevant and inadmissible for purposes of launching a criminal prosecution.
Attorney General Mukul Rohatgi, who defended the Centre, submitted that if such entries are to be believed, any disgruntled person can make an entry against the President, Chief Justice or Minister and launch criminal proceedings till the allegations are proved false. “There will be millions of such cases the police will have to deal with daily,” he said.
Agreeing with this submission, the SC observed, “If we are to order a probe in this case, tomorrow investigation can be ordered against any person howsoever high in integrity based on an entry made by an unscrupulous person.”
While Bhushan submitted that whether or not a complaint was genuine or not was the job of police and an investigation cannot be stopped simply because it involves high and mighty. The SC said the materials must prima facie show that the person against whom an allegation is made has done some act or has relation to anything in the entry.
The SC further took note of an order passed by the Income Tax Settlement Commission which dealt with Sahara papers and concluded it to be “fabricated” and refused to use it for purposes of calculating the income of the company.
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